| Promoted by the methodology of natural science and the rationalism of science tool, motivated by constitutionalism, humanitarianism, market economy value, popularization of technology and education, penalty reform, etc., the doctrine of education-oriented penalty comes into being. As a kind of foundational concept of penalty, the doctrine of education-oriented penalty has its given connotation, that is, education is regarded as the essence and objective of penalty and should be run through the whole process of criminal punishment. However, the existence of the doctrine cannot be equal to its due merit. According to the aforesaid claim, there is lots of insuperable puzzlement in theory.The doctrine of education-oriented penalty is short of realistic ground all the same in China. One side, the centuries-old ceremony tradition is not its proper soil. Confucian orthodoxy pursues incrimination on the nature of the guilty rather than civilization based on subjective intention, so the criminal law insists on social safety and neglects personal freedom, thinks much of incriminating than out-crimination, pays much attention on deterrence and is remiss of education. On the other hand, the minor’s especial protection cannot prove the reasonableness of the doctrine. As far as the theoretical criterion is concerned, the doctrine cannot be implemented from the beginning to the end. In the practical manipulation, the doctrine will probably overturn the relationship of “education at first, castigation secondly” on minor offenders. The theoretical deficiency and practical quandary of the doctrine of education-oriented penalty can not deny the educative function of penalty. We should distinguish the educative function of penalty from the education-oriented penalty, which will help us survey the education rationally in penalty theory and practice and facilitate the educative function of penalty after this clarification. |
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