Reaffirming the Doctrine of Modesty of Criminal Law-Also a Refutation of the Reflection Theory
In recent years,China has entered an era of active criminal law legislation.In response to this legislative trend,there has been an upsurge of reflections on the doctrine of modesty of criminal law in the academic circle Whether criminal law can meet the needs of real society is not the only criterion to judge the rationality of criminal law.The inherent attributes of criminal law and the moderate criticism of criminal law theory determine that the doctrine of modesty is not outdated.The criminal law legislation in China still has the problem of excessive criminalization.It is not appropriate to impose criminal penalties for behaviors with low necessi-ty of punishment or to impose a heavy penalty for a minor crime.There are many similarities be-tween the modesty doctrine and the proportionality principle,such as legitimacy,rationality,appropriateness and necessity,so there is no need to establish a set of proportionality principles in addition to the doctrine of modesty of criminal law.The doctrine of modesty of criminal law is not abused in China.On the one hand,criticisms of the existing provisions and practices guided by the doctrine of modesty help improve criminal law legislation.On the other hand,adherence to the doctrine of modesty can prevent the criminalization of behaviors that do not warrant pun-ishment.At present,there are still problems in the actual operation of public power.In the face of deviant behaviors,once the legislation becomes irrational,legislators always have reasons and the ability to criminalize such behaviors.Under such circumstances,the restriction on pub-lic power based on the doctrine of modesty is not only necessary but also timely.Criminal gov-ernance under the modernization of social governance cannot lead to the conclusion that criminal law legislation reduces the modesty of criminal law.The emphasis of the modernization of social governance should be multidimensional crime prevention rather than active intervention by crim-inal law.In the modernization of social governance,the nature of criminal law as a safeguard and the last resort should be adhered to.The reflection theory plays down the doctrine of modes-ty by reducing it to a sub-principle of the principle of legality of crime and punishment.Crimi-nal law legislation limits the scope of punishment by modifying the constituent elements of spe-cific charges,which in itself is the embodiment of the doctrine of modesty.The proposition that the pursuit of innocence rate is the basis for the performance appraisal of judicial organs is not in line with the actual situation.In the era of active legislation,the scope of violation delimited by the pre-law is the boundary of the creation of new crimes by criminal law legislation.The legislation on misdemeanors under the doctrine of modesty should focus on the decomposition of charges and the judgment of the correlation between the behaviors to be regulated and the exist-ing charges.Judicially,decriminalization can be promoted from two aspects:institutionalized regulation and doctrinal regulation.
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