“和为贵”语境下我国刑罚制度的创新

任何制度创新均为着促进社会的进步与和谐发展,须立足于本国国情.刑罚制度创新的开放、轻缓的趋势需在我国有其存在发挥效能的社会基础条件.我国本土法律文化中的"和为贵"思想(民间法)所体现的刑罚谦抑、重视民意具有化解冲突的正功能,是我国实行社会服务刑和社区矫正等替代刑措施乃至恢复性司法的基础条件,问题在于如何将民间法纳入国家法律系统中,使之成为"法律控制下的民间法".为减少"和为贵"传统思想影响下的负功能,应在刑罚制度创新中确立其适用条件和原则.

On the System Innovation of Criminal Penalty in the Context of "Amiability is Highly Valued" in China

The purpose of any system innovation,which should be based on national conditions,is to accelerate the harmonious development of the human society and constant progress.Likewise,the full-play of the open and milder penalty should also depend on the basic social conditions.The thought of "Amiability is Highly Valued" in our domestic legal culture(Folk Law) has embodied the restraint of punishment and attaching importance to the will of the people,which have positive function on dispelling conflict and have been the basic conditions on implementing the alternative penalty such as social service punishment,community correction and restorative justice.However,the problem is how to make folk law become one of the national law,which is under legal control.Thus,we should establish suit conditions and principles in the system innovation of criminal penalty in order to eliminate the negative effect in the thought of "Amiability is Highly Valued".