Firstly, the principle of suiting crime to punishment is briefly analyzed.
First of all, the determination of crime, responsibility and punishment by law is determined by the fundamental interests and will of the ruling class. Therefore, in order to make good use of the principle of adapting crime to punishment, it is necessary to make clear the purpose and object of punishment formulated by the ruling class. Punishment is a means used by the ruling class to punish crimes in order to safeguard its class interests. Therefore, the object of punishment is crime, and its purpose is to safeguard the interests of the ruling class. Crime refers to the behavior that harms the interests of the ruling class, so I think that to really make good use of the principle of adapting crime to punishment, we must proceed from safeguarding the interests of the ruling class. China is a socialist country, the people are the masters of the country, and the criminal law embodies the fundamental interests of the broad masses of people. Therefore, when applying the principle of suiting crime to punishment, we should take the actual harm caused by criminal acts as the standard to measure the responsibility of criminals and the severity of the punishment imposed on them. Conviction and sentencing should proceed from the point of view of harming people's interests and achieve the purpose of safeguarding people's interests through the correct application of the principle of suiting crime to punishment.
Secondly, I think the adaptability of crime, responsibility and punishment is not absolute and unchangeable. The determination of crime, responsibility and punishment in criminal law should maintain its stability, which is the requirement of basic law. But this stability is relative, not absolute. Everything is in the process of change and development, and there is nothing fixed, so is the law. With the development of social politics, economy and culture and the need of social security situation, the provisions of criminal law on crime, responsibility and punishment and their concrete implementation in judicial practice should be adjusted appropriately. Han Feizi once said: "Law and time change rule, and law and time make contributions." In other words, the importance of criminal law is influenced by the situation, and legislation and law enforcement should adapt to the needs of the situation. Similarly, our laws should adapt to the needs of the situation, abolish, establish, change or play an important role in implementation with the changes of the objective situation, so as to give full play to its functions. Therefore, we can't stick to the concept of the principle of adapting crime to punishment, regardless of the influence of changes in the situation on legislation and justice; On the contrary, crimes committed under different political, economic and historical conditions should be appropriately punished within the scope prescribed by law. To sum up, the principle of a legally prescribed punishment for a specified crime should not only measure the size of responsibility and the severity of punishment from the crime itself, but also comprehensively measure it under its specific social and historical conditions, and punish it in an appropriate range according to its different influences under different political and economic conditions.
Thirdly, I think the adaptability of criminal responsibility punishment is mainly determined by the social harm of crime and the personal danger of the actor. In other words, how much criminal responsibility a criminal act should bear and what kind of punishment it should receive depends on both the objective social harm of the criminal act and the subjective danger of the criminal himself. Crime itself is a kind of behavior that harms society, so determining the size of responsibility and punishment is first evaluated from the size of its harm to society. The greater the harm, the heavier the punishment; The less harm, the lighter punishment. The so-called felony misdemeanor refers to the harm to society. But it is not enough to start with the social harm of crime. For example, it is also stealing 10 thousand yuan, and the criminal is forced to commit this crime for the first time; Another criminal lives by stealing and is a recidivist. For the former, light sentences and education reform can achieve twice the result with half the effort, so that they can quickly return to society and turn over a new leaf; For the latter, if the sentence is too light, it will not only fail to achieve the effect of "saving lives", but will condone crime. At this time, in order to determine the size of responsibility and the severity of criminal law, we must consider the subjective danger of the criminal himself. Subjectively dangerous, of course, should be severely punished according to law; Those who have little or no subjective danger should be given a lighter or mitigated punishment. In fact, personal subjective danger can sometimes be manifested as a social objective harm. If a state functionary defected to the enemy with state secrets, at this time, his subjective danger directly poses great danger to national security and interests. In this case, the combination of subjective danger and objective danger of criminals is reflected in a certain degree of social harm. At this time, in order to determine the responsibility and punishment of criminals, it is necessary to comprehensively consider their subjective danger and make appropriate judgments within the scope prescribed by law.
Second, the principle of adapting crime to punishment-easier said than done.
I believe that every legal worker is familiar with the principle of adapting crime to punishment, but it is not easy to do this in practical legal work. The diversity of criminal forms, the ever-changing objective situation and the elusive subjective mentality make it difficult for legal workers to truly adapt every case to the crime and punishment in practical work. I think it is impossible and unrealistic to completely adapt each case to the crime and punishment. We can only keep moving closer in this direction. That is to say, if we compare the adaptation of crime and punishment to the perfect "1", then what we need to do is to add a 9 to 0.999 and improve it in the legislative and judicial fields, so that the principle of adaptation of crime and punishment can be embodied in the process and result of handling cases as much as possible. So how to do it? I think we should start with legislation and justice.
First of all, from the legislative point of view, we should constantly improve the penalty discretion system. The way of committing crimes is constantly changing, the political and economic situation of society is also constantly changing, and people's subjective mentality is also changing. Therefore, if we stick to a law for a hundred years or a thousand years for the so-called "stability of criminal law", then the criminal law will lose its vitality and its function of effectively regulating and restricting people's social life, which is not conducive to the actual implementation of the principle of suiting crime to punishment. The stability of criminal law is relative, and the stability is the legislative intention and legislative spirit of the law, which is also the great purpose. Among them, the chapters on conviction and sentencing of different crimes should be "easy to change at any time". In other words, according to the needs of the development of the times, the penalty system is constantly improving. Some provisions that do not adapt to the new situation shall be abolished and the corresponding penalties shall be cancelled; Some clauses automatically become invalid because of the elimination of existing conditions, and the corresponding punishment no longer exists; Some regulations can not fully adapt to the new situation, and should be supplemented and revised according to the new situation; The emergence of new behaviors that endanger society requires the addition of corresponding new provisions in the criminal law. In short, with the development of the objective situation, it is necessary to abolish, establish and reform the Basic Law. In fact, our punishment system is like a growing child, whose basic attributes such as gene sequence and blood type will not change, but we should constantly supplement him with new nutrition and teach him new knowledge, so that he can grow up healthily and not be out of touch with the times.
Secondly, from the judicial point of view, case handlers should treat each case with a flexible and fair attitude in the process of hearing cases. On the premise of maintaining judicial justice, the case handlers flexibly use laws and regulations to convict and sentence according to the different specific circumstances of different cases. The law is just and the provisions of the law are scientific. Therefore, as a case handler who puts the legal provisions into concrete cases, we should first start with the law and analyze the case according to the legal provisions in order to safeguard the justice of the law. But the law is flexible. For some problems, the law may only make some general provisions, and the law may provide certain choice space in conviction and sentencing. At this time, for the case handlers, it is necessary to flexibly use laws and regulations and analyze specific problems, instead of mechanically sticking to legal provisions. This is the so-called discretion. Discretion is not freely exercised by the case-handling personnel according to their own subjective imagination, but the case-handling personnel use their own professional knowledge to convict and sentence according to the objective and subjective dangers of criminals' crimes and the corresponding expressions of laws. Only in this way, the principle of "adapting crime and punishment" will not become an empty talk, and the principle of adapting crime and punishment can be truly implemented in the process of handling cases and reflected in the results of handling cases.
Third, the thinking caused by the principle of suiting crime to punishment.
While deepening my understanding of the principle of suiting crime to punishment, I also have many questions, which once again triggered my thinking.
The principle of suiting crime to punishment requires that conviction and sentencing should be based on criminal acts. Only criminal behavior is the objective factual basis of criminal responsibility. Therefore, it is not reflected in the process of criminal behavior, but in the performance before and after the crime and some facts outside the crime. Can it be used as a basis for conviction and sentencing? If so, wouldn't it be in contradiction with the principle of adapting to the crime and punishment? If not, then why is there such a case in judicial practice? If two criminals with exactly the same crime circumstances are allowed, one of them will be punished more than his criminal responsibility because of his different behavior and facts in non-crime, it will not undermine the principle of suiting crime to punishment, but will also bring judicial confusion and even provide a legal hotbed for judicial corruption. Through further analysis and careful reading of some cases, I found that non-criminal circumstances are not always the basis for heavier punishment. As mentioned above, conviction and sentencing are mainly determined by the objective harmfulness of criminal acts and the subjective danger of criminals. Therefore, for those criminals who are subjectively dangerous, the law has to make provisions for heavier punishment. This is because criminals have triggered their specific obligations because of their previous behavior, that is, they must strictly abide by the law within a certain period of time, otherwise the law will condemn them more severely. These provisions not only do not violate the principle of adapting crime and punishment, but also I think they are a useful supplement to the principle of adapting crime and punishment. Of course, I also found in some cases that some investigators, due to their low quality or other reasons, adopted some non-criminal circumstances that should not have been considered when they were convicted and sentenced, which not only undermined the seriousness of the law, but also caused great injustice to the parties, thus affecting the fair image of the law in people's minds.
Because the harm degree of criminal behavior plays a decisive role in conviction and sentencing, determining the harm degree of criminal behavior has great influence on whether the principle of suiting crime to punishment is really implemented in judicial practice. This reminds me of a legal provision that says "the crime is extremely serious and should be punished ...", so how to correctly grasp "the crime is extremely serious" has become the key to the appropriateness of sentencing in some serious criminal cases, and it is also the key to the real implementation of the principle of adapting crime to punishment. However, because "especially serious crime" is a general concept, it is difficult for case handlers to accurately grasp the scope of "especially serious crime" in some cases, which will inevitably lead to improper sentencing. Through further access to relevant information, I learned that "extremely serious crime" is a modification of the word "heinous crime" in the old criminal law. In the theoretical circle, the understanding of the word "extremely serious crime" is not the same, and the evaluation of the word is also mixed. Some scholars believe that the word "heinous crime" overcomes the shortcomings of the original criminal law that the meaning of the word "heinous crime" is unclear and the wording is not rigorous enough. The so-called "extremely serious crime" means that crime is particularly harmful to the country and people. Whether a crime is extremely serious depends not only on the objective harmfulness of the crime, but also on the subjective malignancy and personal danger of the perpetrator. However, some scholars believe that it is not appropriate to change "the most heinous crime" into "the most heinous crime", which is only a literal modification, and its practical significance has not changed. I personally agree with the former. Because first of all, this view is in line with the principle of suiting crime to punishment stipulated in China's criminal law, that is, the severity of a crime should be considered comprehensively from two aspects: the objective harmfulness of the criminal act and the subjective malignancy and personal danger of the perpetrator. Secondly, I think this view is also more scientific. No case can be measured by the same standard. Each case has its own particularity, so the conviction and sentencing of criminals need to consider not only the degree of harm to society, but also their subjective malignancy and personal danger, so as to realize real fair sentencing. In judicial practice, their criminal acts may cause the same harm to society, but their subjective malice and personal danger are not necessarily the same. If we only consider the objective harmful results at this time, it will obviously fail to achieve the purpose of punishment, and it will also cause people's doubts about the fairness of punishment and even a crisis of confidence in the judicial trial system. However, although the word "heinous crime" has the same meaning, it is obviously not rigorous enough and does not meet the basic requirements stipulated in the legal provisions. Fortunately, in some judicial interpretations, the Supreme People's Court has clearly defined the severity of some crimes. I think it is helpful for investigators to measure the severity of crimes according to this standard in the process of handling cases, but this division is only a material division. The identification of subjective malignancy and personal danger of criminals should be determined by investigators through careful analysis.
When reading some materials, I found that some scholars questioned the necessity of "strike hard" and thought that "strike hard" deviated from the principle of suiting punishment to crime, which might lead to judicial confusion and even damage judicial justice because of different sentencing conditions. I used to doubt this, but now, as I mentioned in the first part, the determination of punishment for this crime is related to the political, economic and historical conditions in which this crime occurred. The conviction and sentencing results of the same crime can be different under different circumstances. Therefore, I think it is necessary to strike hard. I think "strike hard" is based on the specific scientific analysis of the social security situation and the national political and economic situation, so what kind of punishment is given to a criminal act is not eternal, but changes and adjusts with the development of the objective situation. For example, when a country is very rich, maybe a person who steals a ton of steel will not be sentenced to heavy punishment; However, if a country is at a critical moment of economic development, and this person steals a ton of steel at this time, and it happens that the theft of this ton of steel leads to the delay of national key projects, then the punishment brought by this ton of steel is definitely heavier than the former, and I think it must be heavy and must be a "severe blow". Some behaviors have different social effects and values in different situations, so "strike hard" not only does not violate the principle of adapting crime to punishment, on the contrary, I think it is the requirement and embodiment of the principle of adapting crime to punishment, and the basic spirit of implementing "strike hard" is "treat crimes as crimes and punish them as crimes". ————————————— It should be this.