On the criminal law in early educational

Abstract: The Criminal Law is an Educational function of the Criminal Law embodied in Education, a legal characteristics. Our jurisprudence of Criminal Law there are five major errors Educational knowledge: only moral Education and religious indoctrination, there is no legal enlightenment, but no Criminal enlightenment; Criminal Law function does not include the Education-oriented functions (or guidance function); regulatory function of the criminal Law does not include educational function; not all penalties are educational; educational exhibits essential property of the criminal law. in theory should be out of misunderstanding, strengthen Criminal educational Research; Official practice should be strengthened to create "Officials for the division," the good image.

Keywords: educational law; Criminal educational; Education on criminal law; misunderstanding


In recent years, the issue of legal faith crisis, caused concern. For example: the case of a criminal gang was sentenced to 1 year principal, and "accomplice" was decided 3 years reeducation through labor, after the principal released from prison to detention The inmates of the visit. The inmates consider themselves less serious cases, from the penalty, but the "jail" time is longer than the principal offender, was not fair [1]. previous studies often underestimate the Criminal Law of Education on Criminal Law (collectively, function and role) and the rational concerns of education. Now is that a serious review of educational laws and the criminal law of educational time. This paper on the criminal law to discuss educational issues related to initiate.


First, the origin of criminal educational

Criminal law is not self-evident whether the educational, but need to do some investigation. Because the criminal law is the law itself, so it should be talked about from a legal educational.


(A) The law of educational

Educational law refers to the educational function of law and education to reflect the characteristics of a law. For the law has an educational function and role in legal academia is not much controversy, so that the law is not so with the educational problem. just about what the legal function and role of education, different academic knowledge. For example, some scholars believe that the education function is defined as that has, through its provisions and implementation of people's minds, cultivate and improve people's legal awareness, and guide people according to law behavior function and performance [2] (P89). Some scholars believe that education role is defined as "implementation of the law while the ordinary people in the future conduct occurring positive impact" [3] (P125). The latter view is produced by fingering the implementation of the guidelines on the role of ordinary people. And the former view the latter not only view content, and may include the law on the general guidelines for the development function, it can also include implementation of the law generated by the correction function for a pArticular person. I agree with the former function on the basic content of education point of view. However, the scholars hold the view again before the law independent of the guidance function, so that side by side with the educational function to regulate the function of pArt of that function is defined as the guidelines have, for the people's behavior can provide an established pattern, in order to guide people to the extent permitted by law engaged in social activities, functions and performance [2] (P86). I believe that function and its educational function to guide direct parallel, it is better to split them guidelines for education and educational function of correction function (ie, type of education, guidance and correction based education function function. In addition, there are scholars who believe that the role is defined as the guidelines (mainly legal norms) act on my play-oriented, the role of lead the way. In fact this is a microscopic understanding, because it can not accommodate law guidelines on the role of the general population, so obviously incomplete. Accordingly, this paper based on the generalized Education on the position to understand the law, understand the law thus educational.


(B) whether the educational Criminal Law

Logical reasoning from the point of view, because the law has the educational, criminal law is a fundamental law, it also has educational Criminal Law. Of course, the fact that this Logical conclusion is the need for further verification. In other words, criminal law must have the education function. basis <<Shangshu Shun Code>> reads: "Like the typical punishment, the crime of the world ... ... Four salty clothes. ... ... The emperor said: 'Gao Yao, ... ... but Mink allowed!'" in which "four sins the world salty service "means by the four criminals deserve punishment, the world people are convinced that the most appropriate disposal of Shun." However, Mink allow "means only see the truth behind the case and dispose of properly, will make people convinced. which is evident thousands of years ago, China ancient times the penalty function of education and awareness of the emperor of their educational function. In addition, "<Han Fei Zi>> Speaking of the once" the son of this has Fucai, ... ... the love of parents, local people trip , the wisdom of the three United States and Canada teacher Yan, and finally fixed, the tibial hair does not change. ... ... to push law and search Men Do not Cry, and then fear, change the section, easy to carry on his line. "This shows that parents, rural doctors and teachers unable to education, not a device guy, but the sentence was able to make it repented of deterrence-based education. Far East International Military Tribunal trial of war criminals of World War II is also clear to the law to justice. and, as a code of conduct guidelines for declaration of the Criminal Code ban on the paper, warned people: those who violate criminal prohibition, it will bear criminal responsibility. The action (or practice) of the Criminal inform the practical consequences of human behavior, which is the activity of the ban or concrete. The resulting behavior of the people of knowledge, clear rights and obligations , should know how to proceed. This is the people receiving criminal legal education process. Also, Internet users pArticipate in online discussions on certain criminal cases, is both a way of supervision and law enforcement, but also understanding, perception, learning practical knowledge of criminal law process. Yunnan Peng parents to the courts, to some extent also from Guangdong, "Xu Ting" by the education guidelines and the use of criminal knowledge of performance [4]. we all know, criminal law (punishment) Education typical example of prison rehabilitation of offenders and education and so on. In short, this shows that the criminal law has an educational function, and thus has special educational features.


Second, criminal law, the five largest educational misunderstanding

Our jurisprudence on the criminal law into the educational awareness following errors:

(A) misunderstanding: only a moral education, there is no legal indoctrination (especially criminal law enlightenment)

Schools almost no "legal indoctrination," "Criminal convert" the words. This phenomenon may be related to people the concept of deep-rooted, that is: criminal law is generally backed by threat of penalty orders. So, not so much educate the criminal law, criminal law rather penalty deterrence, at best, a certain degree of education authorized punishment. In fact, the serious consequences of this concept, covering even hindered Education on the criminal law, educational mechanism ���� Jiaoyu rational investigation. However, some scholars have pointed out that Western Zhou Dynasty's "gift" feature, focusing on "enlightenment." at the same time that the law is fully equipped with the nature of Zhou [5] (P43-45). Therefore, Zhou's "convert" function, in fact, has a law "convert" the color. Again, "<Mirror>> reads:" death to the old world where the vertical and three hundred and ninety people, no supervision handsome, self-Yi Chodo are scheduled, no one person who died hiding ; on the forgiveness of all. "Emperor Taizong of which at least shows that the road of enlightenment. Another example is the implementation of criminal law abolished the death penalty for humanitarian, how can we not educate the reason? criminal law as a security law, as to maintain" moral minimum "of means in itself, can not no moral, or they will become evil accomplice. This shows that the criminal law and criminal law is essentially educational morality are closely related.


(B) of the Myth: the educational function of the Criminal Code does not include the orientation function (or guidance function)

Some scholars believe that the law include guidelines for functional specifications, mandatory functions, educational functions, etc. [2] (P86-89). I believe that there is no function to guide (or guide function) as a function of education to understand it is not complete. Education refers to education is not only a function of correction functions, should also include education-oriented functions (education, guidance function). because "education" is a "lead person" or "nurturing people," the cause or process. In fact, the criminal law in line with the guiding function "education" of this essential characteristic. In addition, 1995 <<Supreme People's Procuratorate to further crack down on criminal IPR infringement notice>> the reference to "focus on strengthening IPR protection in the country's public education and the law implementation of the "in" education "and" in order to ensure the correct implementation of the Criminal Code, "the <<Criminal>> Article 2" ... ... educate citizens to voluntarily abide by the law ... ... "in the" education ", etc., should be there is a law-oriented functions (or guidance function) of the "education", not just the legal circles is usually understood, "education" means that the rehabilitation of offenders (or the offender) sense of "education." Thus, even death, death penalty or life imprisonment without parole sentence, in addition to the prisoners I have almost no education at all functions, but also a deterrent for most people still type (or even loyal type) of the education function, which is a function of education-oriented areas.


(C) Myth: Regulation of the Criminal Code does not include educational function function

Regulatory function (also known as functional specifications, laws, functions) does not include the function of education is debatable point. They generally have the following five representative view:
1. Essential function (or functions) and subsidiary functions (or auxiliary functions) said. Some commentators have suggested, criminal law, the essential function of function can be divided with the subsidiary function, or the basic functions and auxiliary functions on two levels. Basic ���� criminal law inherent and essential attribute of an objective reflection of its formation is spontaneous, as long as the criminal law of a launch, it will automatically generate basic functions. The subsidiary function is conscious generation. such as slavery, the feudal system of criminal law, the penalty function and prevention function is obvious, but it does not have the correct function. and that the functional specification is the basic function, to predict the performance of its specific features, orientation features, the evaluation function, penalty function (sanctions function) and prevention capabilities [6] (P41-54, 55-57).

2. Nonessential nature of functions and features said. Some scholars believe that the function of criminal law with the law, protection of function, protection and preservation of function and the function of education. The first three functions as "essential function of the penal law," the latter " function, though not the essence of criminal law, but under the concept of evolution of the modern criminal law, its main function of the positive, so attention should be paid "[7] (P30-31).

3. Evaluation of function and function of the referee said. Some scholars believe that the normative function of the Criminal Code, including evaluation of both functions and the specific function of the referee function [8] (P37-54).

4. Evaluation function, function and behavior of judges, said the boot function. Some scholars claim, standardize the evaluation of functions and functional addition to sentencing standards, including functional (the referee function), but also includes functions to guide behavior [9] (P131-132).

5. Promote the capabilities and limitations of function said. Some scholars believe that regulate the function of criminal law including the promotion of capabilities and limitations of function [10] (P262).


In my opinion, these five have some ideas inspired by rationality, but still worth discussing. On the "essential function and sub function, said," is concerned, the DepArtment has a lot of worthy of discussion. First, the features that are confused, the role and function of the horse. Moreover, "the essential function and sub function" and "nonessential function" was inappropriate. because the "essence" is relative "phenomenon" is, the "subsidiary" is a relative "independence" in terms of . and because, as the inherent, intrinsic functions are the essence of the phenomenon rather than external, the role of its release is an external phenomenon Bale. Therefore, only the "essential function", not "non-essential functions." Secondly, as mentioned earlier, the Research function in the specification, there is no function to guide (or guide function) as a function of education to understand it is not complete. Third, since that "as long as the criminal law of a launch, it will naturally produce basic functions, "then you can find, criminal law functions as a code of conduct is a basic function-oriented, or even that the orientation function is the function of law in the primary function of norms, and to include the function-oriented educational function and correction function, of course, there are certain basic functions of the ingredients. Fourth, the "essence of function and sub function that" the prevention of functional specifications into functional areas but excluded the practice of correct function with the correct type of special prevention function must be corrected based on the fact that functions conflict. Since the function of prevention (including special prevention function) can be included among the functional specification, then the correction as a function of the basis of its existence there is no reason to stay out of the. In particular, the modern criminal law for juvenile criminal law, its correct function is more obvious. Therefore, "essential function and sub function, said," there is no comprehensive understanding of educational function, the function of education based on this position and understanding of the role is also undesirable. In addition, "non-essential functions and essential function of that" terms of criminal law which recognizes the function of security and education has become a major function of criminal law and should be seriously considered, it is worthy of recognition. But, in addition, it "essential function and sub function, said" there are still many common problems. such as "nonessential functions" inappropriate expression, education, preservation of function of criminal law and education because of limited function (correction function) and too narrow in scope, does not include the guide should include functional, security and education of the function of criminal law should also be law of the function is not included in the scope of its outside. on the "referee function evaluation function and said," is concerned, the classification of structural defects in the Criminal Code, it is clear not only does not reflect the support of the educational structure of criminal law, there is no shown to prevent structural support. mainly because of its view by category is incomplete, only from the criminal code of conduct norms are normative point of view with the referee classification. In fact, the criminal law norms is implementation of norms, which are mandatory functions and correction functions, and Code of Conduct does not mean only to point evaluation function, function-oriented code of conduct (or guidance function) is also impossible to ignore and so on. If that function-oriented (or guidance function) is to evaluate the function derived, there is no need for separately, then can also say that the referee is also the evaluation of behavioral acts of nature, the referee function is derived by the evaluation function are, why they can be compared? This means that the evaluation should not be indefinitely extended. Thus, the scope of its context size should be conducive to reveal the possible function of the principle of criminal law norms. The result reveals that the normative function of too little, it is undesirable. on the "evaluation of function, function and behavior guidance function of the referee said," and "promote the capabilities and limitations of functions that" speaking, but also there are also not fully reflect the functional specifications (regulation function) problem. I think, criminal law is the regulation function of education an important part of function, they are part and whole. Criminal Law function can be divided into: education-oriented function, predicted function, evaluation function, mandatory functions (including retribution penalty function), and education correction function and regulation function.


(D) Myth: All penalties are not educational

Some scholars believe that "strictly speaking, an educational not have all the penalties, which are mainly close to the modern liberal punishment has an attribute. Freedom than criminal penalties, such as life sentence, property punishment, punishment generally eligible not only the properties of punishment with education properties. And, even if the punishment for freedom, the freedom of the ancient punishment of criminal property is also just do not have near the modern liberal punishment with educational "[11] (P504 .)

In fact, this "Strictly speaking, the" point of view is not entirely in line with historical facts. As some scholars have pointed out that the education in ancient China the role of penalty have stressed. <<Codes of Tang Dynasty were patients>> said: "bamboo cane , hit also. and training ashamed. A spokesman for a small transgression, Disciplinary Act shall, so adding punch to the tart. ... ... it is <Books ">> says: 'Fight for teaching torture.' that is, its righteousness." and that it is through the "shame" means to achieve education. Yun: "Christians who are slaves. cover the shame of slavery." and is "shame" approach to education. In fact, the criminal law in ancient China punishment with education components [12] (P2-3). Another scholar pointed out that in our history, moral education is the Neo-Confucian discipline and punishment are strongly advocated two basic means of social education [13] (P10) . For example, the famous Neo-Confucian Cheng Yi said: "The beginning of Mongolian rule, to establish its anti-limit, Ming severity of the offense and punishment, is the law also make it from which, gradually As of also. or suspected fameng the beginning, suddenly tortures people No is not taught but by peace? know legislative system of punishment, is it taught as well. On the cover of the torturer, which no longer carry enlightenment to know. "Therefore, the absolute denial of ancient criminal law (punishment) of the educational, is worth open to question. In particular, the criminal law entirely confined to educational reform on the education of offenders, has many shortcomings. This is clearly ignore the criminal law (punishment) on the general education-oriented functions (such as education warning), and artificially covered entity for criminal penalties for the purpose of education, the results of case studies there, so this view is not conducive to a comprehensive study of criminal law involved in education. reposted elsewhere in the Research Papers Download http://www.hi138.com (V) Myth: educational exhibits essential property of the criminal law

Some scholars believe that criminal law is criminal law nonessential educational attributes [6] (P51). Indeed, this is not the orientation function of the aforementioned (or guidance function) as a function of education to understand the conditions of the one-sided conclusions. It should be recognized that educational is the essential attribute of the Criminal Code. The reason generally are: one, "nonessential properties" was inappropriate. because the "essence" is relative "phenomenon" is concerned. attributes are inherent nature of things rather than external phenomenon. Therefore, only the "essential nature", not "non-essential property." Second, as mentioned earlier, education is a function of the important function of criminal law section. In particular, criminal law and criminal law education-oriented function is the concomitant . Third, the educational function of punishment is usually necessary between the function and prevention function of the bridge and link. Since education is the educational function of not only the correction function, should also include education-oriented functions (education, guidance function). Therefore, even death, death penalty or punishment of life imprisonment without parole terms, in addition to the inmates speak of my little educational function, but also a deterrent for most people still type (or even loyal type) function of education, which are function-oriented aspects of education. And deterrence-based prevention function, loyalty-based prevention is the deterrence function of type (or even loyalty type) generated on the basis of education functions. For example, some people see Wumafenshi and fear, to know the serious consequences of such acts not criminal. "knew it the serious consequences of such acts "is by the education guidelines," not criminal "is the result of prevention. If the sentence read criminal conceivable Wumafenshi not dare to commit the crime Wumafenshi, that is, through the" read the criminal law "and by guidelines, only "not criminal" and a preventive effect. Also, for ordinary crimes, in terms of ordinary criminal, not only for general educational function, and may I also have the education of inmates to function and, indeed, to produce educational effect, of course As for the positive or negative role in the do not ask. that is, education-oriented function is linked with the general preventive function of punishment function of the bridge, this link is almost a certainty. because of the deterrence-based education (orientation) function and deterrence-based prevention function, only the first to receive information to guide it possible to prevent the results, which by the person determined by physioLogical and psychoLogical characteristics. but it needs attention, for the function of loyalty-based education, which may also not be receiving information to guide has produced a special case of prevention of the results. However, education is the contact penalty function correction function and special function to prevent bond. Some of this contact is essential, some are not. In sum, the special prevention function is actually can be divided into the correct type of special prevention function (positive special prevention function) and non-corrective type of special prevention function (negative special prevention function.) Prevention of non-correction-type functions, including physical elimination of a special type of (permanent) isolation type special preventive function. One function of education is the correct type of punishment and correction function of the special ties of essential preventive function. It is not only legal basis for the formation, but also factual basis. Indeed, because of the conflict on the structure and function, making correction function can not be punished educational function and prevention of non-correction function of the particular type of bond. In fact, this case was to punish the function and prevention of non-correction function of the particular type of direct binding, do not use intermediaries. Thus, the punishment function and prevention of functional necessity of an intermediary between the educational function of the coverage as more than half at least. With the increasing degree of social civilization, this coverage will continue to rise.


Third, the enhanced educational Criminal Law

From the above we can see, my academic study of criminal law there are many educational problems. In the current implementation of the rule of law, attention (as a security law) Criminal educational imperative. Particularly in the absence of the rule of law and the moral constraints of traditional weak country, strengthen the rational thinking of education law, helps to promote the rule of law, enhance public faith in the rule of law, thus strengthening the positive significance of criminal law is particularly important educational. In this regard, at least two ways to make unremitting efforts .


(A) the theory out of misunderstanding, to strengthen the criminal law of educational

For the aforementioned pitfalls, the point of view, this has been a degree of criticism. Therefore, we must recognize that the educational function of criminal law and the importance of education characteristics. Of course, they are not born out of thin air, but special education from the criminal law structure, and this structure, function and their relationship formed by a special mechanism, which is a special punishment for crime and governing the country (including the correction of offenders) education system.


This involves criminal law for the special mechanisms of educational Research has not received enough attention as a Research topic. Even in the West, criminal penalties (and treatment) study the education mechanism is not sufficient. Although the German criminal law scholars Liszt Punishment of advocates of education [14] (P217-219). The theory emphasizes the special preventive punishment in the role of education and of historical progress, but also in the German criminal law still reflects the thinking of punishment in education. This idea is also to obtain Japan number of criminal law scholars, the inheritance and development. Some countries even have <"Labor Reform Education>> like monographs or textbooks [15] (P11). which the offender specific prevention education for a more detailed study. However, this theory too much emphasis on education, punishment of criminals and not enough emphasis on education, treatment in the general prevention education with features. Of course, later scientists Jaco Jacobs German criminal law scholars advocate to represent a positive theory of general prevention . He believes that the task of criminal law is to protect the effectiveness of legal norms, law norms emphasize people's sense of identity, so that the general public learned of the legal norms of loyalty [16] (P1-146). However, in him, still not with a positive general prevention education, the negative general prevention education and education in the education of criminal conduct in the special system. That is, few of the criminal law system to do from the perspective of integrated education system analysis. Contemporary China , there are also such similar problems. relating to criminal law problem is an educational emphasis on education with Chinese characteristics of the offender (including labor reform school), and other narrow sense of "punishing the education" Research. In fact, in order to strengthen the criminal law education of research, but also from the "criminal punishment of Education" (in a broad sense, "the punishment of Education") point of view of criminal law. "criminal punishment of Education" content, including the offender education (including labor reform school ), a negative general prevention involves the positive general prevention education and education related to the content. to the criminal law system of penal mechanism, perhaps a broad sense of "the punishment of Education," a perspective of integrated analysis kinds of paths. because the criminal law includes penal system punishment than the punishment mechanism and penalty mechanism for richer content of education, which also involved a conviction correctional mechanism and so on. You can study and explore one of the law of development. I that China's criminal law should be "the rule of law to criminal law and educational," while the Chinese criminal law should be "to the educational value of the criminal law", so that the criminal law to be a truly "the most precise of Law," is awe-inspiring and by the Education Law.


(B) to strengthen official management practices, to create "Officials for the division," the good image

"Officials for the division," originally referred to officials as a professor of law teachers, but officials also contains the meaning of its own and should serve as role models. Judicial officer is actually educational for the effective implementation of criminal law and embodied in the basic subjects. In particular " Example is better than precept. "behavior of their relationship to the realization of justice, related to the criminal operation of the educational effect. Accordingly, practitioners should pay attention to" Officials as Teachers "model for the power problem.



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