Functionalism of criminal law has positive and negative aspects.Different from the positive functionalism of criminal law,which focuses on the criminalization and punishment,the neg-ative functionalism of criminal law aims to introduce the conceptions and systems of private law to-gether with the functions of de-criminalization,non-punishment and mitigation of criminal responsi-bility into criminal legislation,so as to realize the diversification and modernization of crime govern-ance in the era of misdemeanor.The two aspects have consistency in value goals and complementarity in functional means.The negative functionalism of criminal law is based on the theory of criminal law's task and penalty purpose,always sticks to the state's monopoly on crime governance,and pur-sues the recovery of victims,the return of injurer,economic benefits and other effects of governance within the limits of legitimacy.In order to practice and develop the negative functionalism conception of criminal law,first of all,we need to establish a functionalist theory system of crime with"taking the punishability as the main and the need of punishment as the auxiliary"and attach importance to the legislative application of the criminalization model of"prioritizing administrative treatment,guar-anteeing criminal punishment".Secondly,it is necessary to explore incentive mechanisms and di-versified implementation methods for criminal responsibility,use the legalization and even specializa-tion to promote criminal responsibility incentives for restoration of legal interests after committing a crime and positive repentant behavior,improve the system of conviction and exemption from punish-ment and the system of relative non-prosecution,and establish a comprehensive conception to im-prove the substantive punishment system for crimes.
Functionalism of Criminal LawNegative Functionalism of Criminal LawPrivati-zation of Criminal LawMisdemeanor Governance
万方数据
维普
