Retributivism and purpose of the doctrine of the confrontation and reconciliation
【Summary】 retribution doctrine and purpose of doctrine facing each other, outlines the penalties for the two different styles theory landscape. Retributivism is already stressed that the imposition of
penalties for the crime of retribution; the purpose of the sentence imposed doctrine emphasizes the sin lies in the prevention of possible accidents. Retributivism uncompromising doctrine and purpose, it is inevitable one-sided, so the rise of eclecticism. Eclectic view that both the purpose of punishment is retribution of crime, but also on crime prevention, protection of society. In fact, retribution and prevention are mutually compatible with unity. Retributive punishment constitutes the
basement, in this sentence should also be considered on the basis of a positive general prevention and education, the purpose of rehabilitation of offenders. In criminal activity at different stages of retribution and prevention differently in ... ...
The nature and purpose of punishment is the penalty theory, the important issue of the mid-18th century, the scholars of the in-depth study of the
formation of the retribution theory of Marxist doctrine and purpose of the confrontation, the current tends to reconcile the two and gradually move toward eclecticism.
Retribution doctrine, also known as retribution punishment doctrine (TheoriederVergeltungsstrafe), the absolute theory (Absolute Theorie),
stressed that the penalty imposed is the retribution. Wuyouwubao, good will be rewarded is a human reason common sense, crime is an evil, evil for the crime should be the penalty should be. Penalty is a crime of retribution, is already focusing on the sin, crime, punishment not only
for the fact that the conditions, but also for the sole reason for punishment. According to changing times, as well as retribution under paragraph (why retribution) of the origin of the different retributivism has experienced three kinds of theoretical form: divine retribution, moral
retribution, legal retribution.
(1) Divine Retribution
Divine retribution prevalent in the ancient and medieval thought. In order to explain the penalty of their divine legitimacy, crime is
Providence's offense, it should be God's punishment, the State according to God's will, for the perpetrators to be punished, in order to safeguard social justice.
Early days, the magic of the human subject to outside forces of nature, so rich the human imagination can create hidden deep in the nature of human happiness and suffering dominated the omnipotent god (Note: the spirit of humanity can not do without relying on, or else he would is difficult to survive, regardless of relying on the spirit is real or
illusory, in short, is that ultimately, it is human beings. humans different from animals is one of the rich imagination of mankind is a rational animal, perhaps constitute the spiritual life of human biological base. Relying on the spirit of human dependence on the advantages of human nature? or weaknesses? I'm afraid it is better termed a double-edged
sword.). God calls for crime to fight back the evil punished. "Throughout Europe the ancient times, those who cause significant harm to others, acts
of God, will be subject to severe punishment. In this case, the criminals have been seriously suffering is being desecrated in order to appease the gods." (Note: [English ] J * W * Cecil Turner: "Kenny Principles of Criminal Law", Wang Guoqing, such as translation, China Press, 1989
edition, p. 6.) Thomas Aquinas (ThomasAquinas ,1225-1274) in Western
Europe, the Middle Ages The most authoritative theologians, he Aristotle's doctrine and Christian theology combine to form the Middle Ages in Western
Europe the most systematic theology legal thought. Aquinas must obey the kingdom of heaven from the secular, political, must obey the religious point of view, the Act is divided into four types, namely, the eternal law, natural law, divine law and human titration (Note: GU Bear: "Analysis of the Western Law Schools", Shanghai Academy of Social Academy Press, 1992 edition, p. 7.), indicating that his natural law and to proceed from the Divine Providence for the end-result (Note: Lv Shilun editor: "On the
origins of Western legal thought," the Chinese People's Public Security University Press, 1993 , p. 5.). Rulers in ancient China strongly advocating "divine kingship" and "on behalf of the line of fine days," ideas of the divine law. XIA Qi Hu's time in the crusade has declared:
"This year I Koreyasu days of fine-line" ( "Shang Shu Gan oath"). Similar
records are: "There is more than the summer of crime, bearing in mind the mandate of heaven" ( "Book of Tang oath"), "Sharpy guilty, I fear God, not rectified" ( "Book of Tang oath"), "Shuang Wei days, bearing in mind its fine me, it does not complain. Where Jue crimes, none of the large, there is no multi; Shen Yue its smell is still noticeable in the days "(" Shang Kang Patent ") (Note: High Shao-xian:" History of Chinese Criminal Law
Essentials ", Law Press, 2001 edition, p. 83.).
(B) the moral retribution
As a theoretical form of moral retribution, formed in the bourgeois Enlightenment. Kant's doctrine of moral retribution ancestor (Note: Chen
Xingliang: "Penal Philosophy", China University of Political Science Press, 1997, p. 279.). Moral retribution of ethics and morality to explain the penalty for the legitimacy of that crime is a moral evil acts of one's heart's performance should be the moral punishment, the state according to moral values, for the perpetrators to be punished, in order to maintain social justice.
Kant stressed that retributive punishment, pointing out that: "The Court of punishment must not be merely as a means of promoting another
good, regardless of the offender himself or to civil society. Punishment in any case, you must just because a person has committed a a crime to be aggravating to him. because one person definitely should not be treated merely as a means to achieve the purpose of others "(Note: [Germany] Kant:" Act of metaphysical principle - the right to science, "Shen Shuping
translation, Commercial Press, 1991 edition, p. 164.). In Kant's thought, human nature latent in both good and endowments, but also has a tendency
Latent in human nature of the original endowments of the good deeds, there are three: the existence of life as a person, man has the "animal nature" of natural endowments; as a living the same time, there are rational beings, people with a "human nature "natural endowments; as a rational and able to assume responsibility for the existence of those people with" personality "of the natural endowments. The reason why these three kinds of natural endowments as is "for good" because these three
kinds of endowments and the moral law is not far from a direct conflict, while a third person endowments is able to comply with the moral law of roots.
The tendency of humans to evil is divided into three levels: human frailty, that is, when people are weak acceptance criteria; not purely sexual, moral motivation will soon be confused with non-moral motivation;
humanity and morality of evil, that is, the criteria for acceptance of evil tendencies. Orientation and endowments are different; the good
endowments is the original, while the evil tendency is to obtain, and is a human self-inflicted, the result of free choice of will. Of good and evil in the human body two possibilities, the moral law is for the people's supremacy unshakable, no matter what the actual behavior of people, bound to his moral law is inevitable.
Because the dual nature of man, they accordingly produced two kinds of moral law: first, the ethical rules that applied within the body of people was seen as the moral law, which requires not only act in line with the law, and requires its own laws behavior is motivated, so it is
inherently coercive force; Second, the legal rules that applied to both be seen as an external phenomenon was again seen as a body of persons moral
law, which only consider whether the conduct in line with rules, behavior regardless of motives, it is mandatory external combined. The law should reflect the principles of justice, and this principle is the externalization of moral law. In real life, evil is always easier than
doing good deeds, as a finite rational beings, people always tend to meet their emotional desires, in the process, often in violation of the moral law. Such acts were morally deserves censure and condemnation. Penalties for breach of ethics and thus bring about many social consequences, which launched (Note: See Li Mei: "Rights and Justice: Kant's Political Philosophy", Social Sciences Academic Press, 2000, p. 161-167 pp. For the
penalty launched the moral foundation of Japan Seiichiro Ono criminal
scientist (1891-1986) also made clear that "criminal law should be
regarded as fundamentally based on ethics, that is, the practice of human relations in the truth or clarifying things for the foundation "([Japanese] Ono, Seiichiro book:" Elements of the theory of crime, "the Chinese People's Public Security University Press, 1991 edition, p. 46).).
(Iii) legal retribution
Legal retribution theory is a product of modern times. Hegel is a legal doctrine an important representative of retribution. Legal
retribution by law to explain the penalty for the legitimacy of that crime is a breach of law, the punishment should be by law, the state required by law, for offenders to be punished, in order to maintain social justice.
Hegel would be an offense as a criminal, is a negation of law, while the penalty is a negation of the crime, through which deny access to its own positive law, so law is a criminal remedy to get there in value. Hegel believed that the form of three kinds of illegal: "It's either itself or
direct the false impression that no mens rea, or civil illegal, or are the main set to false, that is, fraud, or simply be translated into the main body Uganda has, that is criminal. "(Note: [Germany] Hegel:" Philosophy ",
Fan Yang, Zhang enterprises Thai translation, The Commercial Press, 1961, p. 92,95-96,100 page.) mens rea, or the so-called non - civil illegal, is
behavior people mistakenly think that they have a legitimate wrongful act of a criminal; the so-called fraud, is the perpetrator know that their
behavior is illegal, but it used deceptive ways to make another mistake this a legitimate act of a lawless ; The so-called crime, is the behavior
of both themselves and others, knowing that the perpetrator of the
wrongful acts of a criminal. Hegel emphasized that "the real criminal is a crime, a crime in both the law itself, or what I think the French have not been respected, the law subjective and objective aspects had been destroyed." (Note: [de] Black Nagel: "Philosophy", Fan Yang, Zhang
enterprises Thai translation, The Commercial Press, 1961, p. 92,95-96,100
page.) Hegel pointed out that crime is nothingness, and its nothingness lies in the fact of law as the law has been discarded. However, as the absolute law of what can not be renounced. "Criminal behavior is not the first thing, sure thing, the penalty is added to it as a negative, and the