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
contrary, it is the negative things, so sentence is the negation of negation. The law is now the reality is that that kind of infringement
abandon it, or It is through this abandon, France has demonstrated its effectiveness, and prove that he was a necessary set by an intermediary. "(Note: [Germany] Hegel:" Philosophy ", Fan Yang, Zhang enterprises Thai translation , The Commercial Press, 1961, p. 92,95-96,100 page.) reposted
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Second, the purpose of doctrine
The purpose doctrine, also known as the purpose of criminal doctrine (TheoriederZweckstrafe), the relative theory (RelativeTheorie), stressed that the purpose of punishment is imposed. The purpose of punishment is not the retribution of crime, the penalty is only a means, through which the means to achieve the prevention of crime, protection of social
purposes. Penalty for the offense can get underway to launch the aim is the penalty imposed by the starting point and destination. According to the purpose of pointing to the different (for whatever purpose), the purpose of doctrine is divided into general prevention and special
(A) General prevention
General prevention to the community in general are the targets that the purpose of punishment is deterrence through punishment or confirm specifications, to prevent that the general public, so as not to crime.
According to differences in the way of prevention, general prevention is divided into the implementation of threat doctrine, legislative threat doctrine, positive general prevention.
1. Implementation of the threat of Marxism
Implementation of the threat is through the implementation of the general public in front of a cruel punishment to prevent the average person to commit a crime, thereby having the effect of crime prevention. Implementation of the intimidation was rampant in the ancient and medieval
authoritarian societies. China's authoritarian society, an extremely savage and cruel punishment. There is ink, cut off the nose, Africa, Palace, Big Five Penalties statutory provision, as well as Bao Luo, Cesarean section and so on outside the capital punishment law. Five Dynasties to the Qing Dynasty, slicing has been used for thousands of years followed. Slicing the whole process of filling the sentence bloody. "Slicing off their limbs, first, sub-never his throat," "inch of the
spine, will it completely, and then whom cut their potential, women were secluded, closed out their organs in order to complete its life, supporting sub-section solution, Potamogeton the bone then has been. "slicing mostly carried out in public, according to eyewitness written:"
The execution scene has been continued until the prisoner's ankles were drowned out the blood. the audience shouting with excitement. those who are cut off the head of the the lawn is like a ball inside the executioner ... ... below the knee were all blood-stained red, his hands
still dripping blood to Lili. "(Note: [Law] Mading Mo in Sidi Ai:" Human capital punishment Grand View, "Yuan Xiao first-class translation ,
Lijiang River Press, 1999, p. 109-110,49 page.) abroad, authoritarian
societies the prevalence of terror the same penalty. Central and Northern Europe removal of internal organs is frequently used sentences. Medieval Europe was particularly fond of the church siege punishment, offenders are kept in cages. Hanging in the town hall, the court or even outside the church, in full view, hunger and thirst to death, more cruel is that in bad weather in winter or summer. There are buried alive, wooden blocks or punishment, live stripping, broken body punishment, grind punishment, and
stake, spine-punishment, stone dead, etc. (Note: [Law] Mading Mo in Sidi Ai: "Human capital punishment Grand View," Yuan Xiao first-class
translation Lijiang River Press, 1999, p. 109-110,49 page.).
2. The legislative threat doctrine
Legislative threat was expressly provided by law penalties ways to curb crime, the general people's desire, thereby having the effect of crime prevention. Feuerbach trying to intimidate advocates legislation, proposed the "threatened with the law," the famous saying. With the
implementation of the intimidation is different from the legislative intimidation is not a sentence to emphasize the implementation of the bloody scenes, but the clarity and certainty of punishment. Feuerbach created to explain the psychological forces that threatened legislation. He believes that everyone has the pursuit of happiness, the instinct to avoid pain, so people may be given greater happiness, the joy of the ideas on a smaller cut off; possible to avoid the pain of a larger, they will
tolerate less unhappy . The reason why the perpetrators of crime, on the time of the crime to obtain their pursuit of happiness emotional impulse; in order to prevent crime, we must contain the perpetrator's emotional impulses. Specifically, for certain crimes, in order to advance the Criminal Code clearly defined, definite penalty, so that people know in advance subject to punishment for crime, the suffering is greater than the pleasure obtained by crime, thus, acting according to profit and avoid
loss people will put the small curb the crime was committed by the penalties resulting from displeasure and unhappiness large compared to prefer to avoid a big upset and choose a small upset, thus inhibiting initiation of crime psychological ideas in order to achieve to avoid the
crime (Note: Mark Chang-editor: "Modern History of the Western doctrine of the Criminal Code," the Chinese Procuratorate Press, 1996, p. 83; [Japanese] Kimura Turtle 2 editor: "Criminal Law Dictionary", Gu Xiaorong such translation, the Shanghai Translation Publishing Company 1991, p. 411 page.).
3. A positive general prevention
Implementation of the threat and legislative intimidation are threatening basement, this can be described as a negative general preventive. On the contrary, beyond the generally understood meaning in the deterrence, prevention, positive general prevention, the evaluation function through the criminal law and decisions of the meaning of the function, so that citizens of the criminal law dependence, thus achieve
the effect of crime prevention (Note: The [Japanese] Kimura turtle 2 editor: "Criminal Law Dictionary", Gu Xiaorong such translation, the Shanghai Translation Publishing Company 1991, p. 411. The so-called
evaluation function of criminal law, criminal law to certain acts as a crime and subjects a certain penalty, thus for the general provides criteria for judging the value of an act; criminal law decision of the meaning of function, is the general criminal law instruction value in
accordance with this criterion meant to make the decision.). German scholar Jacobs (GuntherJakobs) advocate a positive general prevention. He stressed that the standards of criminal law norms that should act as a declaration of conflict with the norms and the penalties as conclusive
evidence of prescriptions for the answer. The effectiveness of punishment is that, on the other hand with the social norms have identity confront confrontation. Sentences confirmed the identity of the community. In other words, crime should be regarded as a flawed interaction, and this defect to blame the behavior of its people, community to uphold these norms, but also refused to be re-understanding of their own. Penalty is not just a tool for the maintenance of social identity, but is this for their own
maintenance. Sentence implies a self-confirmation. Jacobs from the
responsibility point of view, put forward a positive general prevention is to maintain the trust of citizens in criminal law norms. In his view, as long as a State is not temporarily exist, trust in the correctness of the specification is not followed by the emotional nature to maintain. For general preventive purposes defined lines of responsibility, not as a duty and responsibility under the penalty of the recipients of the "good
citizens" identified by the idea, but according to the trust to maintain the right specifications that must be determined. It is with the idea of crime, according to people who "earned" what has nothing to do, but to the trust necessary to maintain the things (Note: [Germany] Gelv En Teya Jacobs: "acts of criminal responsibility - Functional Description "Feng
translation, China University of Political Science Press, 1997, p. 103, 35.).
(B) Special Prevention
Special precautions for the crime, man-made objects, that the
sentence was intended to or through the penalty of deprivation of education, crime prevention people, so as not to re-offending. Special
prevention is the modern school of criminal penalties advocated by the
theory, according to differences in the way of prevention, special crime prevention capacity is divided into denial doctrine correct to improve the doctrine.
1. Deprived of their abilities to commit crimes of Marxism
Abilities to commit crimes is deprivation of liberty or a life
sentence imposed on the perpetrator, so that offenders are isolated from society or disappear in the society, and thus rule out the possibility of recidivism. Can be seen that crime deprived of the ability is negative
special prevention, also known as the exclusive doctrine. You Boluo Soe (CesareLombrosr ,1836-1909) is the denial of the ability of the proponents of crime. In his view, both from a statistical point of view, or from an anthropological point of view, crime is a natural phenomenon, inevitable.
For those who are already mature crime, we should pay attention to prevention rather than cure. Bad guys are hopeless, and even their son, also born bad; a judge to kill criminals, death penalty, crime prevention through the re-occurrence (Note: [Italy] Lombroso: "perpetrator" theory, Huang Feng translated , China Legal Publishing House, 2000, p. 319,327,323 page.). Penalties should be based on the different types of offenders without distinction; right, but not criminal people with criminal
tendencies to implement security actions, that is, to make a pre-isolated
from society; for those who have the physical characteristics of crime to be physical therapy, that is, through medical measures such as removal of forehead, denial of reproductive function such as to eliminate the motivation of crime; to those who risk a great desert island exile, life imprisonment and even death (Note: Liu Qi Students: "Lang Burrow shuttle's criminology", Commercial Press, 1938, p. 363 page.).
2. Correction to improve the doctrine
Correction to improve the doctrine to criminal penalties as a correction to improve the people's means of punishment to the offenders through education and reform, so that it Gaiecongshan, thereby excluding
the possibility of recidivism. Thus, a positive correction to improve the doctrine of special prevention, also known as education, criminal doctrine. Franz Liszt (FranzVonLiszt ,1851-1919) to improve the doctrine
advocated by correction. In his view, the purpose of punishment is
rehabilitation and education of prisoners, to eliminate the risk, so as to return to the general public life. Did not focus on the individual to prevent the possibility of prevention of non-specific crime, but rather to
prevent people who have been punished re-offending. The weight penalty is
thought to eliminate the risk of the offender (criminal), so that the processing period for returning to society as a standard (but the penalty is not the behavior of the perpetrator). The purpose of punishment is not
so much intimidation, exemplary people, nurturing people said to be transforming itself, crime prevention is more important than others (Note: Ke-Chang Ma editor: "Modern History of the Western doctrine of the Criminal Code," the Chinese Procuratorate Press, 1996, the first 196-197
pages.). Japanese criminal law scholars Kimura Turtle II (1897-1972) is a
fanatical criminal theory of education, he advocated: Education is the nature of the penalty; education, crime, punishment of education is man-
made objects of special education, is "re-education", which with the
normal general education is different; Branch penalty not because the
behavior of a person who commits a crime, but to the perpetrator is not a crime; penalty should be based on the perpetrator's personality, take the appropriate approach to make it return to society; as long as the prisoner The corresponding characteristics and contribute to their becoming social beings, education and criminal means there will be no restrictions;
education, criminal penalties for individuals of the same crime against people of equal treatment of the different treatment of people of different crimes, the Education punishment include egalitarianism, and further reflects the allocation of doctrine (Note: Li Haidong editor: "The
Japanese Criminal Law, those who" (upper), China Law Press, Church of Japan written in 1995 edition, p. 180.).
Retributivism uncompromising doctrine and purpose, it is inevitable one-sided. The growing confusion surrounding the penal system. Of this system makes sense of any moral instructions, must be manifested as Zhuzhong varied in nature and part of the conflict, a compromise of principles. So the purpose of penalty is the rise of eclecticism.
Eclecticism, also known as one theory, a comprehensive theory (DieVereinigungstheorien), that both the purpose of punishment is retribution of crime, but also on crime prevention, protection of society. Should reconcile the crimes already punished the crime with the prevention
of possible accidents in the penalty to be imposed taking into account these two purposes, so that mutual effect. According to the purpose of eclectic focus on sentence is different from eclecticism into a true eclectic, eclectic absolute and relative eclecticism eclecticism and stages of differentiation.
The true eclecticism, retribution and prevention will be placed in the same position. For example, the German scholar examination Sterling (Kostlin) said: "The penalty doctrine only in the context of retribution and punishment to achieve it was within the scope necessary for the purpose of Section office." Absolute eclecticism, with justice based on retribution, supported by relativism. For example, Autran (Ortolan) said:
"Although the penalty is retribution according to doctrine, but without prejudice to the concept of this doctrine within the framework can be penalty as a means to improve and intimidation." Otani Japanese scholars actually said: "only justify the effectiveness of Er Shi penalty case does not now exist. and it must be said that with the transformation of the invalid names of the implementation of the mandatory punishment is anti-
humanity. Therefore, it should be within the limits of retribution pursued
the objective of prevention, from the In this sense, integrated to say is still appropriate. "eclectic relative to the basis of the purpose of prevention, supported by an absolute doctrine. For example, Fingerhut (Finger) said: "The purpose of punishment to prevent the scope of the
special memory is improving, intimidation and elimination, and in the general area of prevention, where appropriate, a fair idea of the extent of justice should be guaranteed in order to meet the threat of legal concepts." ( Note: The Ke-Chang Ma Editor: "penalty Theory", Wuhan
University Press, 1999, p. 57; [days] Otani real: "Criminal policy studies," Li Hong translation, Law Press, 2000 edition, pages 105-106. )
Stage of differentiation eclectic application of the penalty area
will be divided into legislative, discretionary implementation of three different stages, in the three different stages, each focusing on the purpose of punishment. From the penalty applicable to a whole, it will and purpose of retribution inclusive. Of this type is more common in the whole theory. For example, the Italian scholar Padovani (TullioPadovani) that the penalty is a kind of change things, not dead the same thing, in the three stages of legal practice in its different manifestations. Penalty in
the legislative stage will focus on the role played by general prevention; penalty in the judicial phase, the penalty for offenders specific decisions, their standards should be punished and special prevention needs; penalty in the implementation phase should focus on specific
preventive function to play a penalty. Chinese scholars from all stages of the criminal activities of the purpose of the sentence made clear that in criminal activity should be taking into account the retribution and prevention of these two purposes, but in different stages of criminal activity, the two were the focus: In the sentence create phase, the general objective of prevention in a dominant position, but the pursuit of general prevention can not exceed the limits of retribution; in
discretionary penalty phase, should be based on retribution mainly within the range of Legal Sentence could be balance in the general prevention and individual prevention; the penalties the implementation phase, the individual to become the main purpose of the prevention, but the purpose of achieving the same subject to retribution and general preventive restrictions.
The basic feature of retribution is the penalty, the penalty because the crime to launch retribution factor is the penalty inherent in itself; the other hand, if the penalty is just retribution for retribution while, then it will become a formal, rigid things, and have lost as part of its deeper social significance, it should also be penalties for preventive
purposes. Retribution and prevention are mutually compatible with unity, but this does not mean that regardless of both primary and secondary. No crime, no penalty, no punishment without law, there is no law there is no criminal penalty, so in retribution and prevention, the penalty is the first to focus on the crimes already launched, retribution constituted a penalty basement, and that retribution must be limited to within the legal definition of rationality. On this basis, should also take into account
the resulting penalty to make the general people believe in the law, this is a positive general prevention. Of course, the effectiveness of its deterrence penalty, but it should not be our deliberate pursuit. In retribution for the base penalty, does not negate the penalty should apply in the future of crime, taking into account the possibility of the perpetrators, this is a special prevention. But here is a special prevention should be a positive sense, that is, for the purpose of re-