How to Evaluate the Impact of Minimization and Decriminalization on Criminal Law Reform

Decriminalization--The Theme of Contemporary Criminal Law Reform

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SummaryThis paper demonstrates the criminal conceptual basis of the beginning of the decriminalization movement, analyzes the ways and means of the decriminalization movement, and advocates that our country should implement the criminal policy of "lightness and weight, with weight as the main factor", while punishing major crimes with severe sentences and decriminalizing minor crimes in due course. To heavy mainly" criminal policy, in order to punish major crimes with severe penalties at the same time, the timely decriminalization of minor crimes.

I. Decriminalization: the beginning and its conceptual basis

The famous German contemporary criminal law scholar Hans Heinrich Jessek once pointed out that, through the study of criminology and the various studies linked to this, the modern criminal policy in how to deal with crime and what methods and means should be taken to defeat the crime, roughly, the following three *** knowledge has been formed: First, the legislator in order to avoid unnecessarily putting certain crimes into the hands of the lawmakers, and to avoid the use of the law to prevent and punish the crimes. The legislator, in order to avoid unnecessarily criminalizing certain acts, and also in order to preserve the seriousness of punishment in the minds of the general public, must limit the range of acts that must be imputed by the criminal law to the minimum necessary for the maintenance of public * * * order. Secondly, since most people develop normally, the method of testing in a state of freedom should be extended to those who have committed minor or even moderate offenses. The study of the dark count of crime not only reveals the prevalence of crime, but also finds that civic loyalty to the law is stronger than the seductive force that leads people into felony. As long as people remain immune to serious crimes that realistically threaten the peace guaranteed by the law, public * * * security should not be considered threatened. Therefore, the option of testing in a state of liberty should be expanded for those who have committed minor or even moderate offenses. Thirdly, the work of the police and the judiciary should be made to concentrate on the more serious offenses, while minor offenses should be entrusted to the administrative authorities to deal with them through the degree of simplicity. [1] Professor Jacek's statement actually outlines one of the major principles of the contemporary worldwide criminal law reform movement - modesty in criminal law - and two major themes - decriminalization and decriminalization.

Decriminalization and decriminalization, as the two major themes of the contemporary worldwide criminal law reform movement, are the direct requirements of the principle of criminal law moderation, which is the basic criminal policy of modern criminal law. The so-called modesty of the criminal law means that the criminal law should be the last line of defense for the society against illegal acts, and that illegal acts that can be adjusted by other legal means should not be adjusted by the criminal law as much as possible, and that criminal acts that can be adjusted by the lighter criminal law should not be adjusted by the heavier criminal law as much as possible.

The principle of modesty in criminal law first of all strictly shrink the scope of criminal law intervention that is the legal circle of crime, can not be treated as a crime as much as possible. In western countries, highly criminalized morality, criminal law is highly moral criminal policy ideas and "legislation qualitative - judicial quantitative" criminalization mode under the conditions of coexistence, criminal law reform is first of all through the traditional morality crimes, administrative crimes that do not cause much harm to non-criminalization of criminal law principle of moderation. On the other hand, our country strictly controls the circle of statutory crimes mainly through the criminalization model of "legislative qualitative restrictions and quantitative requirements". Although the two models have different advantages and disadvantages, they can be said to be on the same path in terms of reflecting the principle of moderation in criminal law. Secondly, the principle of modesty in criminal law also requires the strict contraction of the legal penalty circle and the extensive application of penal substitution measures. The so-called strict contraction of the legal penalty circle refers to the fact that, despite the fact that an act constitutes a crime and should be held criminally liable in accordance with the law, when deciding on the response to a criminal act, the conditions for applying penalties to the criminal act are strictly controlled, and when the purpose of preventing and controlling a crime can be achieved without the application of penalties and by using other non-punitive means of dealing with the crime, then penalties are excluded from the application of penalties, and non-punitive means of dealing with the crime are used instead. This is the main content of the contemporary criminal law reform movement of non-punitive movement.

The decriminalization movement, as one of the themes of contemporary criminal law reform alongside decriminalization, is a product of the polemic between the criminal law ideology of purposive criminalism and the ideology of retributive criminalism. Retributive punishment is rooted in the deep-rooted human emotion of revenge, "no good deed goes unpunished, no evil deed goes unpunished". 19th century James Stephens, a famous British criminal historian, once said: "The emotion of revenge is as important to the criminal law as sexual desire is to marriage, and the imposition of punishment on criminals is a universal impulse. The imposition of penalties on criminals is a legitimate outlet for universal impulses." [2] After Kant's moral retributivism (Note: Kant's moral retributivism holds that crime is a violation of the categorical imperative of reason committed by a person with free will, and that punishment is a just penalty and retribution imposed on the offender in response to his or her moral responsibility incurred as a result of committing a crime as a ipso facto requirement of reason.) , Hegel's legal retributivism (Note: Hegel's legal retributivism holds that crime negates law as an absolute set in place, and that punishment is the negation of the negation of law by crime, and that the essence of punishment lies in the negation and renunciation of crime, and that it is through the negation of the negation that law can show its validity and justice be restored.) and Binding's normative retributivism (Note: Binding's normative retributivism argues that crime is a violation of a norm premised on a penal statute, and that punishment is the state's repudiation of a criminal act that negates the norm based on the right to demand that the offender obey the norm.) The theoretical impetus of retributive punishment, as a systematic theory of punishment, asserts that crime is a kind of evil harm, punishment is nothing but a way of reacting to the evil of such evil behavior as social crime, and the meaning and essence of punishment lies in the retribution for the evil caused by criminal behavior, and the pain inflicted on the offender by punishment is used to equalize the evil of the criminal behavior and the offender's culpability in order to achieve social justice. In the view of retributive punishment, the punishment should be freed from all the conception of crime prevention purpose, but purely as a just retribution for the evils of crime, the punishment should be imposed with the crime as the only legal reason, and the degree of evils of the crime should be the only basis for deciding the degree of severity of the punishment. In short, retributive punishment advocates that punishment should be commensurate with the crime, that the guilty must be punished, and that the punishment should be appropriate to the crime, and that it should only pursue the restoration of justice and the fulfillment of the human emotion of retribution, without regard to the utilitarian purpose of punishment, especially the necessity of preventing recidivism. Under the guidance of the retributive punishment idea, the crime must be punished, the punishment is the crime, the legal crime circle and the legal punishment circle is completely the same as its scope.

While purposive retributivism is of the opinion that no matter how just the retributive punishment is for a crime that has already been committed, it cannot change the fact that the crime has already been committed, nor can it make up for the harm caused by the crime or restore the original status quo before the crime has been committed, so that the retributive punishment focusing on the degree of harm caused by the crime is always passive, negative and futile. In fact, as long as punishment is of the state, it cannot be a primitive instinctive and impulsive thing, but must have some necessity and purpose of its own. For example, Lister points out that "the idea of the purpose of the law is intrinsic, and this idea of the purpose of the law is the very essence of the law. ...... The only way to completely constrain the penal power is with the idea of penal purpose, which is the ideal of penalism." [3] Rawls further clarifies that "The propriety of punishment can only be evaluated on the basis of its probable effect as an instrument for the maintenance of the social order, and of its imposition. If the result of its imposition shows that it has the effect of promoting the interests of society, it is proper; otherwise, it is improper." [4] The theory of purposive sentencing asserts that, on the one hand, punishment must be a means to reach a reasonable end of social defense; on the other hand, it must serve the end of preventing socially dangerous persons from committing socially dangerous acts by determining the individual sentence on the basis of the individual circumstances of each offender. According to the scientific research on the empirical evidence of the causes of crime and the situation of offenders, the theory of purposeful punishment advocates the application of different punishments to different types of offenders, such as Enricofelli advocates the application of segregation punishment to the born offenders and the habitual offenders who cannot be reformed, the application of therapeutic and corrective punishment to the habitual offenders who may be reformed and the occasional offenders, the punishment of damages for the passionate offenders, and the pre-trial punishment for the persons who are dangerous at the end of the execution and those who have not committed a crime but have the tendency to commit it. those who have not committed a crime but are predisposed to do so. Lister advocates that punishment should be the main tool for opportunity offenders, correction, treatment and probation should be provided for situation offenders who are likely to improve, and long-term or life-long isolation should be provided for situation offenders who are unlikely to improve. In addition to this, Lister advocated the restriction of short-term liberal sentences, the expansion of probation and parole, the abolition or restriction of the death penalty, the improvement of execution facilities, and the introduction of security sanctions and indeterminate sentences. It is the theory of purposeful punishment represented by Philly and Lister that sees the functional limitations of passive, ex post facto and negative punishment of crime by traditional punishment, and actively explores "alternative measures to punishment" to make up for the insufficiency of punishment while actively advocating the concept of purposeful punishment and proposes non-punitive treatment of crimes that limit the scope of application of punishment and the theory of security punishment. The theory of security disposition has been put forward. Under the advocacy of the theory of purposeful punishment, on the basis of reflecting on the shortcomings of the traditional penalty system centered on deprivation of liberty, the criminal laws of various countries have, to varying degrees, provided for measures to deal with crimes in a non-punitive manner, thus greatly restricting the scope of the legal penalty circle, and promoting the decriminalization of the worldwide movement for criminal law reform.

Two, decriminalization: ways and means

Comprehensively examining the decriminalization movement in today's criminal law reforms around the world, the ways and means of substantially restricting the circle of penalties through decriminalization are mainly as follows:

(1) Substantially restricting the scope of application of the penalties through the stipulation of the system of exemptions from the penalties and exemptions from the circumstances of the penalties.

Modern criminal laws of various countries, which have broken away from the fence of retributive punishment, have, in accordance with the need to realize the purpose of punishment, generally provided for the exemption system as an exception to the principle of "guilty must be punished", and stipulated a number of exemptions from punishment for criminal acts. As long as the perpetrator has the legal exempting circumstances, even though his or her behavior still constitutes a crime, the court can only determine that he or she is guilty and declare that he or she is exempted from punishment. For example, article 132-58 of the French Penal Code provides that: "In the case of misdemeanors or, except in the cases provided for in articles 132-63 and 132-65, in the case of offences against the police, the court may exempt the accused from punishment after acquitting him of the offence and, if necessary, after issuing a sentence of confiscation of harmful or dangerous substances. dangerous substance, the court may relieve the defendant of any other penalty." Article 132-59 provides that: "The penalty may be waived if it is shown that the offender has been reintegrated into society, that the damage caused has been compensated and that the harm caused by the crime has ceased. The court pronouncing the exemption may decide not to record its decision in the criminal record." [5] Section 60 of the German Penal Code provides: "The court shall exempt the offender from the penalty if it is manifestly inappropriate to impose the penalty because of the hardship suffered by him as a result of his crime. However, this provision shall not apply if the offender is to be sentenced to more than one year's imprisonment for his crime." In addition, article 23 of the Act provides that: "The court may exempt the perpetrator from punishment or, where appropriate, mitigate the punishment if, owing to a major error of perception, the perpetrator was unable to complete the attempted crime in accordance with the nature of the object of the crime or the means used. Article 24 stipulates: "(1) If the perpetrator automatically suspends the continuation of the crime or prevents the completion of the crime, he or she shall not be punished as an attempt. The perpetrator shall be exempted from punishment even if the crime is not completed due to an act of suspension, as long as the perpetrator automatically and conscientiously endeavors to prevent the completion of the crime. (2) If several persons **** commit a crime together and one of them prevents the completion of the crime out of his/her own will, he/she shall not be punished as an attempt. If the crime is not completed because of the act of suspension or if the commission of the crime has nothing to do with the previous participation of the suspended person in the act, the suspended person shall also be exempted from punishment as long as the suspended person, out of his own will, conscientiously endeavors to prevent the crime from being completed." [6]

(ii) Substantial limitation of the scope of application of the penalty through non-criminal sanctions.

The so-called non-criminal sanction measures refer to the non-application of penalties to criminals who have been determined guilty according to law, and the use of means other than penalties that do not have the nature of criminal sanction to be disposed of. Non-criminal sanctions are generally applicable to criminals with exemptions from penalties, criminals with minor offenses or minors with minor offenses, which itself does not have the nature of punishment, but can play a role in making up for the limitations of the function of penalties.

With the development of the decriminalization movement, the criminal laws of various countries have provided for many non-criminal sanctions as alternatives to penalties. For example, Britain's Criminal Justice Act of 1972 provided for CommunityServiceOrder and DayTrainingCenter as alternatives to custodial sentences. In Germany, a 1975 reform of the Penal Code excluded the criminalization of police offences, treating them as general breaches of the law, punishable only by administrative fines and not by criminal fines. In Belgium, a system of deferred prosecution is in place. If the prosecutor believes that the character, age, and circumstances of the offender, the nature of the crime, the circumstances and severity of the crime, as well as the circumstances of the crime, he or she believes that the prosecution can be deferred, he or she may decide not to prosecute, and be subject to investigation and supervision. After a certain period of investigation and supervision, if the offender is considered to have performed well, a decision may be made not to prosecute. This practice was introduced into the United States in the 1960s and was transformed into the pretrial probation system. The defendant to whom pretrial probationary supervision applies must be a person who has been found by the prosecutor to have committed a crime, and cannot be subject to pretrial probationary supervision if his or her behavior does not constitute a crime in and of itself. Thus, pretrial probationary supervision is a non-punitive way of dealing with persons who have in fact committed a crime. With pre-trial inspection supervision, in the United States there is a wider scope of application of the non-penalization of the crime response, which is probation supervision (probation). Probation supervision, refers to the judge on the defendant's criminal behavior to make a declaration of guilt without sentencing, but provides for a supervision test period, in this period of time the person subject to the declaration of guilt should be under the supervision of the probation officer to comply with the special obligations. If the convicted person is found to be doing well under supervision, the sentence will not be applied at the end of the period. Currently, all jurisdictions in the United States provide for such a system of probation supervision. [7] In addition to the United States, the United Kingdom, as well as the Commonwealth countries and even the civil law system of France, Belgium, Sweden and other countries have adopted this system of probationary supervision. However, although probation supervision is also a treatment method applicable to offenders, it is essentially a non-penal treatment method, which is substantially different from the probation system practiced in most of the civil law countries as well as a few states in the United States. The probation system generally practiced in civil law countries means that the court pronounces a guilty verdict on the defendant and imposes a sentence of deprivation of liberty for a certain period of time, while at the same time suspending the execution of the sentence according to certain conditions, stipulating a certain period of supervision and testing and special obligations that should be complied with, and no longer enforcing the original sentence if it is considered that the offender has performed well in accepting the supervision. In the United States, this probation system is called suspended imprisonment (suspendedsentence), and only a few states have implemented this suspended imprisonment system. Suspended sentencing is really just a method of enforcing a sentence of imprisonment, although the actual consequence of suspended sentencing may be the non-enforcement of the original sentence of imprisonment. In the United States, in addition to these non-criminal methods, efforts are made to obtain public and private assistance and to utilize the mediation process, as well as to avoid criminal prosecution of conflicts through the involvement of certain unofficial agencies and groups. This is known as Diversion. The first attempts at diversion occurred in the late 1960s and early 1970s, when the Philadelphia Municipal Court established the Philadelphia Municipal Court Arbitration Tribunal in 1969, and when a Columbus City Attorney's Night Prosecutor program was developed in Ohio in 1970 (the Columbus City Attorney's Night Prosecutor program). theColumbusCityAttorney'sNightProsecutorProgram). Both programs handle a large number of minor criminal cases outside of the courtroom, giving conflicting parties the opportunity to discuss their conflicts and attempt to resolve disputes. Mediators in the Columbus program are law school students with specialized training in mediation techniques. Soon after its introduction, the program became very popular and was widely disseminated.In 1974 a committee of officials from the federal Department of Justice cited the program as a model project. By the 1980s, approximately 140 cities in more than 30 states had implemented similar referral programs under names such as "Residential Dispute Resolution Centers," "Neighborhood Trial Centers," "Community Conciliation Centers," "Community Mediation Centers," "Community Mediation Centers," "Community Mediation Centers," and "Neighborhood Mediation Centers. ", "Community Council Program", "Urban Court Project" and so on. In Canada, this trend is called "dejudicialization".

In the former Soviet Union, in Eastern Europe, there are gay and lesbian trials or enterprise courts specializing in the trial of minor crimes. [10] (C) through the security penalty, to make up for the inadequacy of the function of the penalty, limit the scope of application of the penalty.

Security punishment (sicherndemassnahmen), refers to the state based on the maintenance of law and social order of the necessity and to meet the security needs of the public, in the exercise of the right to criminal punishment, for a particular perpetrator, to corrective, penitentiary, medical treatment, prohibition and other means of security measures with the nature of the judicial punishment. Security punishment is generally applicable to the incapacitated person without the adaptability of the penalty, limited liability, with special dangerous offenders such as habitual offenders, frequent offenders and recidivists, etc., in some countries, security punishment also applies to those who have not committed a crime, but the seriousness of the evil.

Security punishment is the modern theory of criminal punishment from retribution to the education of the results of the transformation of criminal law is the concept of criminal law is the crystallization of the theory of innovation, is the criminal empirical school and the criminal classical school of the product of the war. As a criminal policy idea, security punishment was originally proposed by the German criminal law scholar Klein. He argued that the maintenance of public *** peace and happiness is the only legitimate basis for all criminal legislation. Therefore, it is necessary in addition to the penalty in accordance with the criminal risk of the perpetrator to be security sanctions. Because "the penalty has a precise content according to the reality of the degree of crime, while the security punishment has an indefinite content based on the criminal danger of the perpetrator." [11]

After nearly one hundred years of efforts, security sanctions have been recognized in the legislation of the vast majority of countries, the content is increasingly rich and perfect. Taking an overview of the legislation of various countries, security disposal in the broad sense can be divided into two categories: disposal of persons and disposal of things. Dispositions in rem generally include the dissolution of legal persons, the blocking of places of business, and the confiscation of prohibited items; security dispositions against persons can be divided into two categories, namely, dispositions that deprive liberty and dispositions that restrict liberty. "The so-called security punishment of deprivation of liberty refers to the security punishment of depriving the person punished of his personal freedom and placing him in a security punishment enforcement agency or social treatment institution to receive guardianship, treatment, prohibition, penitentiary education, compulsory work, and security confinement." [12] There are mainly seven kinds of security punishment measures for deprivation of liberty: (1) Treatment and care punishment, i.e., punishment for the treatment and protection of mentally incapacitated and mentally weakened persons with limited capacity for responsibility who are not adaptable to punishment. Germany, Italy, Japan and Taiwan have such provisions. (2) Compulsory abstinence, i.e., compulsory abstinence for addicts who are addicted to tobacco, drugs, narcotics and stimulants, as well as for alcoholics. The criminal laws of Germany, Italy, Switzerland, Japan and Taiwan have such provisions. (3) Compulsory treatment, i.e., the punishment of compelling a specific offender suffering from a certain infectious disease to receive medical treatment. The Criminal Law of Taiwan has this provision. (4) penitentiary education, that is, for minors who have violated the criminal law, or there is a risk of violating the criminal law, or there is a risk of affecting social security, based on the need to prevent and social security needs for the mandatory education of correctional penalties. Most countries have this provision in their criminal laws. (5) Compulsory work punishment, that is, for all out of idleness and loitering into the nature of the aversion to engage in legitimate work and lead to the crime of a kind of labor training punishment. Germany, Switzerland, Austria, as well as Taiwan's criminal law has this provision. (6) Security imprisonment refers to the punishment for habitual and habitual offenders in the criminal law of countries that have adopted the dual system of punishment and security punishment, and its content is to preventively imprison habitual and habitual offenders who have been subjected to long-term execution of punishment and have failed to be corrected from time to time, and it is the most stringent means of security punishment. Germany, Switzerland and the United Kingdom provide for such punishment. (7) Admission to a social correctional institution, i.e. the establishment of a special social correctional institution to provide offenders with special social treatment and counselling, as well as psychiatric treatment, for correctional and re-socialization purposes. This is provided for in Danish, Dutch and German criminal law. [13] and restriction of freedom of security sanctions are mainly the following five: (1) deprivation of driving permit sanctions, that is, for the lack of driving ability, clearly unsuitable for driving a motor vehicle to participate in road traffic offenders for the deprivation of a kind of driving permit sanctions. German criminal law has this provision. (2) Prohibition of practice, i.e., the penalty of prohibiting a person from engaging in a profession or business for a certain period of time or permanently for the purpose of committing an intentional crime or breaching the obligations of the profession or business by abusing the professional knowledge or special relationship in the profession or business. (3) The sanction of vegetarian examination and management, i.e., the sanction of counseling, examination and management of a recidivist who is at risk of recidivism during the dangerous period before he/she enters the free social life after the completion of his/her sentence, in order to prevent him/her from committing a new crime within the dangerous period after his/her release from prison. (4) The punishment of protection and discipline, i.e., the punishment of forcing the offender who is less socially dangerous to leave the country or to be sent back to his/her home country after entrusting his/her protection or pardon to the local police agency, self-governing organization, charitable organization, his/her relatives, or other appropriate persons. [14]

Three, decriminalization: evaluation and choice

Under the influence of modern criminal law thought and criminal policy, the decriminalization movement has become the theme of the criminal law reform movement sweeping most countries in the world, and has had a significant and far-reaching impact on the traditional criminal law of various countries. Decriminalization poses a fundamental challenge to traditional retributive penalties, changing the long-held retributive notion that crime must be punished, promoting a change in society's attitude towards crime and criminals, and at the same time economizing on the investment of national penal resources, so that modern societies tend to diversify the ways in which they deal with crime, while at the same time making more humane, civilized and economic choices. The practical effects of the widespread application of non-punitive sanctions for minor crimes and crimes of medium gravity in various countries have shown that a more tolerant attitude on the part of society towards such crimes, which do not pose a serious threat to social order and public welfare, has not led to a marked increase in the crime rate. On the contrary, due to the independent or auxiliary application of non-punitive sanctions, to a large extent, to avoid the traditional penalties, especially the short-term deprivation of liberty sentence of all kinds of shortcomings, thus effectively controlling a period of time since the recidivism rate and recidivism rate increased significantly, on the whole, to maintain the crime situation is relatively stable, and some countries, such as the United States in recent years and even appeared in the crime rate of successive, obvious downward trend.

The decriminalization movement represents the latest tendency of modern society to tolerate minor crimes, but it cannot be assumed that decriminalization has become the dominant aspect of modern Western criminal policy. In fact, based on the concept of purposeful punishment and the concept of cost-benefit, the criminal policy of modern Western countries, while emphasizing the decriminalization of minor crimes and even general crimes, also attaches great importance to the concentration of limited penal resources to severely punish serious crimes. The former represents the "light" side of modern Western criminal policy, while the latter represents the "heavy" side of modern Western criminal policy. There is still a substantial difference in emphasis between the "light and heavy" criminal policy and the "light and heavy" criminal policy of the United States. It is generally recognized that the criminal policy of some European countries is characterized by a "light and heavy approach, with a focus on lightness". While the United States criminal policy is manifested as "light and heavy, mainly heavy". [15]

China is a socialist country, the combination of punishment and leniency is our basic criminal policy. And worldwide decriminalization movement, China's criminal law also provides for the system of exempting criminals from criminal punishment and exempting punishment circumstances. According to the provisions of China's criminal law, statutory exempting circumstances include circumstances that should be exempted from punishment and circumstances that can be exempted from punishment. Among them, the circumstances that should be exempted from punishment include: suspension of the crime and no damage caused; over-defense; over-avoidance; coercion; surrender after the commission of the crime and significant meritorious performance, and so on. The circumstances that can be exempted from punishment include: committing a crime outside the territory of China, having already received a criminal punishment in a foreign country; committing a crime by a deaf, mute or blind person; preparing for the crime; aborting the crime and causing damage; being an accessory to the crime; surrendering after committing the crime and committing a lesser crime; having significant meritorious achievement; embezzling an amount of more than 5,000 yuan but less than 10,000 yuan personally, and repenting for the crime after committing the crime and returning the stolen goods positively; giving bribes to a bribe-paying person before being prosecuted to give an account of the bribe-paying person voluntarily. The bribe giver takes the initiative to give an account of the bribe-giving behavior before being prosecuted; Illegal cultivation of opium poppy or other narcotic plants, which is automatically eradicated before harvesting, and so on. On the other hand, China's Criminal Law also stipulates that persons who have committed minor crimes can be given non-penal treatment in lieu of punishment, and article 37 stipulates that: "If the circumstances of the crime are so minor as not to require the imposition of a criminal penalty, the criminal penalty may be waived, but, depending on the circumstances of the case, the person may be admonished or ordered to make a statement of contrition, make an apology, or compensate for the loss, or be given an administrative penalty or administrative punishment by the competent authorities. administrative penalties or administrative sanctions." In addition, there are various administrative coercive measures applied in practice in China to persons who have committed minor offences, such as re-education through labor, re-education through internment, and compulsory abstinence. The application of these measures as non-penal mandatory measures, in essence, limit the scope of application of punishment, is China's minor violations of the law and criminal behavior of non-punitive way to deal with the important.

However, in general, by the criminal law generalization, the criminal law omnipotence and the legal culture tradition of heavy criminalism influence, China's criminal legislation and criminal justice did not pay enough attention to the movement of decriminalization, the legislation of the non-penal treatment measures did not form a systematic and complete criminal law system, the judicial practice of the case of using non-penal treatment methods to replace the penalty to deal with minor criminal cases is even more In judicial practice, cases in which non-punitive measures have been used in lieu of penalties to deal with minor crimes are rare. Over the past decade or so, the serious crime situation has forced legislators to continually enact new criminal laws that strengthen the power of criminal sanctions, and judicial practice has been characterized by the extensive application of heavy penalties and the death penalty in accordance with those criminal laws; however, the persistently high crime rate and the rate of major cases have not been effectively curbed by severe penalties. In practice, a structural confrontation between crime and punishment has been created in which punishment does not overpower crime, the volume of crime and the volume of punishment have spiraled viciously upward, and the effectiveness of punishment has declined sharply while the investment in punishment has been close to its limit. In a sense, this structural confrontation between crime and punishment actually means that the operation of our criminal law has faced a fundamental crisis.

We believe that there may be many ways and means to resolve this fundamental crisis of criminal law. However, changing the thinking of criminal law, revolutionizing criminal policy, and restructuring the way society reacts to crime is undoubtedly one of the most important choices. An important aspect of changing criminal law thinking is to completely abandon the concept of retributive punishment, to promote the concepts of penal modesty and penal economy, to recognize the last-resort nature of punishment, and to choose society's response to crime on the basis of a cost-benefit analysis. Renewal of criminal policy means replacing the one-sided "heavy, quick and rigorous approach" that has been practiced in China for more than a decade and has not yielded good results in practice with a "light and heavy" criminal policy that is consistent with the principles of criminal law modesty and criminal law economy, while at the same time not relaxing the harshness of the fight against serious crimes. "The policy has been practiced for more than a decade in our country, but the practice has not been effective. Of course, in the light of China's current state of social development, and in particular the reality that the crime situation is relatively serious, the "light and heavy" criminal policy that we have chosen should be similar to the United States' "light and heavy, with heavy as the mainstay" criminal policy. According to such a criminal policy, our criminal legislation and criminal justice in determining the response to crime, should be differentiated for different infringement of the nature and degree of harm to the implementation of the crime, the heavy heavy, the light light, for the nature, circumstances and consequences of the relatively minor crimes are as much as possible without the use of criminal means to adjust, so that we may be the least investment in penal resources to achieve the maximum control and crime prevention In this way, we can achieve the greatest control and crime prevention effect with the least investment of penal resources, so that the operation of China's criminal law to maximize the benefits.

References

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[13] Same as [4], 351-367.

[14] Same as [4], 367-379.

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