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American criminal law

2018-10-12 来源: 51due教员组 类别: 更多范文

下面为大家整理一篇优秀的assignment代写范文- American criminal law,供大家参考学习,这篇论文讨论了美国刑法。美国刑法的宪法限制,即宪法对刑法的限制,这是美国刑法的一大特色,体现了美国对刑罚权限制,禁止刑罚权滥用的态度。美国刑法是立足于个人本位社会,以个人自由为价值取向的刑法,是以限制国家刑罚权为己任的刑法。对个人自由价值的终极追求,深深地植根于美国的刑法文化中。

American criminal law,美国刑法,assignment代写,paper代写,美国作业代写

Due to the development of science and society, while maintaining the differences among countries, the western criminal law shows a trend of assimilation. Different legal systems, different schools and different doctrines influence each other, infiltrate each other and draw on each other's strengths to make up for each other's weaknesses. Despite this, there are still many distinctive provisions in American criminal law, which are different from those in other countries. The author compares several issues with relevant provisions in China's criminal law, so as to better improve China's criminal law and give better play to its functions.

The constitutional limitation of American criminal law, that is, the constitutional limitation of criminal law. This is a feature of American criminal law. It also reflects the American attitude of restricting and prohibiting the abuse of the power of punishment.

The amendments to the constitution provide a series of rights for the protection of individuals. Virtually every right is the product of judicial trade-offs against conflicting interests in a particular social context. For example, the first amendment to the U.S. constitution clearly prohibits any law that deprives citizens of freedom of religion, freedom of speech, of the press, and freedom of assembly and petition.

There are two types of due process clauses: first, substantive limitations, which limit the power of the legislature to make criminal laws; The second is procedural restriction, which involves the form and language of criminal law.

Substantive limitations - harm to the public, private rights and identity. No one shall be deprived of life, liberty or property without due process of law. Procedural restrictions - the form and language of criminal law. It mainly provides for the principle of nullum crimen sine lege and nulla poena sine lege, which is what we call the principle of legality of crimes. On the other hand, the legal certainty - not to be vague, is itself required by the statute of crimes. In addition, the limitation of the constitution to criminal law also includes the rule of law interpretation, which is not described here.

To sum up, the constitutional limitation of American criminal law is mainly embodied in two aspects: entity and procedure. It is also the epitome of American discretion. Situation in our country is different, can only be found in the constitution of the criminal law legislation basis, namely according to the stipulations of article 28 of the constitution of our country "country to maintain social order and suppresses treasonable and other the crime of endangering state security, sanctions that endanger public security, disrupt the socialist economy of other criminal activities, to undertake and reforming criminals". And there's no basis for any restrictions on the power of punishment. Perhaps this is also a reason for the abuse of the power of punishment in our country. Therefore, this characteristic system can also be used for reference by our country. It is stipulated in the constitution in the form of the fundamental law, which should effectively curb the heavy penalty doctrine. The constitutional constraint of American criminal law is actually the limitation of the power of national penalty. Power without restraint is bound to corrupt. It can be seen that this restriction is based on respect for personal values, and its starting point is the pursuit of personal freedom.

At present, there is a great demand of Chinese scholars to reform the criminal theory system in China. Scholars have published many papers on this issue, among which the most notable is the two-level model of the continental law system and the Anglo-American law system. The following is mainly about the two-level model:

The crime constitution system of Anglo-American law system is a conviction process which consists of the essential elements of crime and sufficient elements of responsibility. In this kind of double level system of crime constitution, ontology elements and legal defense form crime as two levels, involvement in the crime constitution litigation elements is peculiar to the British and American criminal law, as a result of the existence of legitimate defence, the double level of crime constitution system in the criminal activities of the introduction of the enthusiasm of the defendant and his defenders, and use the civil judicial resources to make criminal that pay more attention to the realization of individual justice.

The present constitution of crime in China is composed of four elements: the object of crime, the objective aspect of crime, the subject of crime and the subjective aspect of crime. The criminal constitution system divides and integrates the four elements of the criminal constitution, so that the relation of the elements of the criminal constitution becomes a coexistence relation, that is, the elements of the criminal constitution are all, nothing is nothing, only the four elements are all, that is, the elements of the criminal constitution. It only reflect the static specifications, not reflect the dynamic process of conviction of crime of subjective evaluation and objective evaluation, the fact judgement and value judgement, positive judgment to the negative judgment, illegal judgment to the responsibility judgment, judgment and behavior person judgment, abstract judgment and specific judgment, are in the process of disposable, general evaluation. If the criminal constitution model only reflects the conviction conclusion, but not the conviction process, then only one function of criminal law can be highlighted, that is, to fight against crime and protect society. The pattern of criminal constitution reflects the process of conviction, and it is inevitable to show the two functions of criminal law at the same time, to protect society and guarantee human rights. These words of professor huaihu plant deserve our deep thought. Therefore, it is necessary to coordinate the two major criminal law functions of combating crime and safeguarding human rights, and to reform the current theoretical model of criminal constitution in China so as to realize criminal justice. This has reached a consensus in the field of criminal law in China.

The two dominant theories of the justifiable cause of punishment are retribution and utilitarianism, which meet the standards of retribution and utilitarianism. The standard of retribution states who should be punished; the utilitarian standard explains whether there should be a penal system.

In a nutshell, retributivism is that punishment is just because society ought to do harm to those who harm it, only to those who are deemed guilty. The severity of punishment should be proportional to the degree of harm to society caused by the crime.

It emphasizes the utilitarian penal thought of social welfare, and thinks that the penalty is the product of law, and law is a tool of the state. Society should be as free from crime as possible. Social interests, the greatest interests of most people, are the measure of severity and purpose of punishment.

The mixed theory is a compromise theory that emphasizes utilitarian reasons for punishment plus the application of punishment. The so-called persuasive mixed theory of punishment is actually to use utilitarianism to explain the basic reasons for punishment, and mainly from the perspective of deserved punishment to consider the degree of severity of punishment. This is the current theory of punishment that most people in the United States accept.

In contemporary China, there are also scholars who agree with the hybrid theory, such as "neither can exclude the utilitarian pursuit of injustice; Nor can it negate the utilitarian pursuit of unworthy retribution. At the same time, it is also proposed that the punishment should be determined through the existing crime, the prevention should be determined according to the unsolved crime, and the unity of the retribution and the prevention should be pursued to restrain the prevention by the retribution. Theoretically, it is possible to unify the two organically, so that "utility" becomes relatively just utility. Make "retribution" worthy retribution. And scholars believe that, because our country current, in the period of social transformation and economic order still needs to be constructed, a long way away, the rule of law construction and the long-term neglect of human rights in the history and the current serious security situation also reminds us that the current penal legitimacy according to choose should provide sufficient protection of human rights, and it is necessary for crime to take great pressure and strong management. In such an environment, it is a proper choice for the justification of punishment to lay stress on the idea of retribution penalty and to the idea of destination penalty.

To sum up, American criminal law is a criminal law which is based on individual standard society and values individual freedom. The ultimate pursuit of the value of individual freedom is deeply rooted in American criminal culture. From the restrictions of the U.S. constitution on criminal law to the provisions of the criminal constitution and criminal procedural law in the United States, the constitution of crimes and various litigation rights are based on the protection of individual rights and the pursuit of judicial justice. Only when individual freedom is fully guaranteed can social order be generated and developed automatically. At the same time, the automatic emergence and benign development of social order make individual freedom increase continuously. Only when the two factors interact and develop together can an orderly social pattern be formed. With the deepening of China's judicial reform, this idea of guaranteeing human rights should be learned and absorbed by China.

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