刑法正当性（Legitimacy of criminal law）.doc

刑法正当性（Legitimacy of criminal law） The first section is an overview of the legitimacy of punishment I. the tasks of the criminal law 1, the task of the criminal law is the distribution of the Constitution (1) the state may use criminal law to prohibit certain acts (2) the existence of criminal law has obtained the reasonable basis (3) the most distinctive feature of criminal law is its means of use 2, how should the penalty play a role in order to make the task of the criminal law become a justice, and still need to be proved (1) case: A, after the defeat of B, snatched the cap of B, was sentenced to five years imprisonment, punishment is too heavy? (2) the provisions on the freedom of the person in the public security administration punishment law are unreasonable for detaining examination and reeducation through labor (the longest can be up to four years without trial) Two, the legitimacy of punishment 1, the importance of the legitimacy of punishment (1) the evaluation based on socially accepted norms and values declares that the provisions and usage of the penalty are accepted and followed by this society (2) the criterion of judgment: the legitimacy of punishment is closely related to the ultimate fairness and justice of criminal law (3) theoretically explain the justice and justice foundation of punishment, and directly affect the punishment of crime in practice (4) the punishment is the most severe; when the state uses it, it is necessary to consider the legitimacy of the penalty in particular 2, the proof of the legitimacy of punishment: (1) the powers of the state and its representatives To justify the use of punishment by proving that the state and its representatives have the power or qualification to govern or govern society by the use of criminal law As the divine, Confucianism, the emperor ordered on the day, it was ordered by the emperor (2) the rationality of the mission function of criminal law; By proving the validity of the criminal law or the func