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УДК 343.9
FORGIVENESS FROM VICTIM AND RATIONALITY IN CRIMINAL RECONCILIATION
©FengNganB
PhD in Law, College of Humanities, Changchun Industrial University
Changchun (China)
E-mail: [email protected]
Forgiveness from victims has major influence on the construction of restorative justice. Forgiveness can eliminate resentment so as to keep our life go on. Forgiveness can have offenders treated reasonably by victims and reestablish a new and constructive relation between them. Forgiveness is the foundation of criminal conciliation. Restorative justice advocates sensible, reasonable, legitimate rules of dispute settlement so that the reconciliation could be achieved rationally. Keywords: victim; forgiveness; criminal conciliation; restorative justice.
ПРОЩЕНИЕ ЖЕРТВОЙ УГОЛОВНОГО ПРЕСТУПЛЕНИЯ И РАЦИОНАЛЬНОСТЬ ПРИМИРЕНИЯ
Фен На
доктор юридических наук Гуманитарного колледжа Чанчуньского политехнического университета Чанчунь (КНР)
Прощение жертвами преступлений оказывает большое влияние на построение восстановительного правосудия. Прощение может устранить недовольство так, чтобы продолжать поддерживать нашу жюнь. Прощение может способствовать жертвам рассматривать преступников приемлемо и восстановить новые и конструктивные отношения между ними. Прощение -это основа уголовного примирении сторон. Восстановительное правосудие выступает за разумные, обоснованные, законные правила урегулирования споров, так что примирение сторон может быть достигнуто рационально.
Ключевые слова: жертва, прощение, примирение сторон по уголовным делам, восстановительное правосудие.
In criminal cases, the victims are individuals and units who have to suffer the physical loss and spirit damage because of the trespass of their rights. In the wake of crime, the victims may show sympathy due to the crime's repentance, active compensation and other reasons. That is the 'Victim's forgiveness". With the thoughts of humanity penetrating today, compared to the retributive justice, restorative justice is a criminal treatment that achieves the restorative effect by adopting the restorative procedure. Restorative justice program is supplied by third party communication opportunity for the perpetrators and victims. Criminals apologize or compensate to the victims, requesting the victim's forgiveness, in order to repair the psychological damage of the victims and restore the damaged social relations.
Logic and Conditions of Forgiveness from Victim
As recorded in the Book of History, Shun Dian, "Shun presented people some pictures for the new penalty rules. These rules included replacement of the five punishments by exile, using whip as official penalty, beating those who violate decency with board, paying copper for the atonement of punishment. If he commits a crime with negligence, he would be absolved; if he wouldn't repent for some reason, he should be punished.'In ancient China, the subject of forgiveness is country, and this kind of pardon is regarded as the moral integrity of emperor and a charity.
Today, when the country is the subject of forgiveness, forgiveness means remissive in Chinese Criminal Law. The victim's forgiveness in this paper refers to the pardon from a natural person and unit. The victims in crime hold their true opinions based on sympathy, representation and willing to waive or reduce punishment to the criminal's declaration of will.
Just as human beings are growing mature in the complex of love and hatred, forgiveness and resentful emotion, the history of human civilization is also a process of gradually getting rid of evil, more rational and tolerant. Since there is a weaker side in the human nature, the compassion that human should have shall be prevailed by law.
The resentment of victims to criminals is an inner and passive response. When anger can't be discharged, it would be difficult for people to abide by justice calmly. Therefore, the society must make legal
sanctions against offenders, in order to help victims and the whole society lets the resentment out Punishment is a legitimate means of restoring the social justice.
Nietzsche said, "Nothing can exhaust one's energy sooner than resentment." But, forgiveness can make people transcend morality, be free from hatred, no longer exhaust them by the repressed emotions. From individual perspective, forgiveness can sap resentment and contribute to inner peace. Forgiveness is the mental technique by which our thoughts are transformed from fear to love. Forgiveness is necessary. Only when people forgive the mistakes of others, and give up on each other's previous behavior, they could get on with their life. In criminal reconciliation, forgiveness of victims to criminals, together with their acceptance of their repentance and apology, is the respect of human nature. At the same time, it is the protection of human rights that is the basic requirement of the restorative justice.
Forgiveness is conditional. Forgiveness is granted, to be sure, but it is conditional. Forgiveness is a basic ability for people to maintain social contacts, although its cost is a kind of self-sacrifice. Therefore only the victims have the right to decide whether to forgive, which is independent from the power of nation in dealing with criminals. Whether there should be punishment and what degree the punishment should be, everyone could go without indignation and the desire for revenge.
The victim's forgiveness requires conditionality in most cases. When the criminals must admit their guilt and apologize, the victims may forgive them. Apology means a sign of yield and weakness. Admitting of guilty could make victim's forgiveness meaningful.
The victims, temporarily in a weaker position, could use the power of forgiveness to make up for their disadvantages, and hope to obtain the perpetrators of the apology or compensation. The victims need to exchange in the moral level or material interests, in order to balance the need of heart or economy. The repentant attitude of criminals can make the victim get moral and psychological advantage, so they can express forgiveness for criminals. At the same time, forgiveness can also enable the victim to rationally treat the criminals, to rebuild a new and constructive relationship with criminals. "Restorative justice intends to make criminals responsible for crimes in a meaningful way, making compensate for the victims in a real sense. The core value idea is the thought of protection for victims."
Restoration of Justice and Forgiveness after Crime
Justice and forgiveness is necessary to resolve criminal conflict. Justice can make right and wrong more clear and definite, reclaim the criminals, and make them sincere repentance. Thus they can get the victim's forgiveness and produce reconciliation. Justice and forgiveness are inseparable and complement each other. If forgiveness is blindly emphasized, we can't distinguish between right and wrong, we can't give the real punishment to criminals, we also are unable to establish justice. If justice and punishment are blindly emphasized, both sides of the conflict can't timely express discontent in the hearts. So hostility can't be timely defused. Social harmony can't be established. Forgiveness can't be achieved.
In solving criminal cases, the punishment is based on the logic of justice. That is the conventional choice. Forgiveness that is beyond the logic of justice can't become a general substitute of punishment. Forgiveness as a choice is beyond punishment. It is also a kind of choice that is beyond justice. Punishment intends to maintain the conditionality of justice, and forgiveness is fundamentally beyond this conditionality. Forgiveness can't become a common phenomenon. It is just an accidental phenomenon.
However, the society needs forgiveness and also is necessary to advocate the feeling higher than justice. The feeling is forgiveness. This kind of emotion can help to redress intense anger, and be enable the people to have the proper response to injustice. The society also needs the victims look at human nature in the view of forgiveness. As professor Otsuka Hito points out that we should "in the face of strong national regulations of criminal law about the frailty of human nature into breathing people's tears of sympathy." Forgiveness from forgiveness respects for humanity in altruistic desire, tolerate egoism in human nature, which is the key to the operation of criminal reconciliation system.
Forgiveness from victims doesn't violate the connotation of justice. In order to realize the justice in the criminal procedure, one should pay attention to and compensate the victims, entrust the victims with more right to participate in the litigious process and more rights to compensation. We should respond to the problem of the infringement and victims in a new framework, in order to ultimately realize justice. On the other hand, we should pay more attention to criminals and relief them. The purpose of restorative justice is to change the structure of punishment as the center of traditional retributive justice. Criminals should know that their behavior has brought negative impact on others. They should reflect on their own mistakes, assume eor-
responding responsibilities, repair the damage, win trust again, start with a clean slate, go beyond the past, and return to society.
Therefore, victims could distinguish criminals and their criminal behavior why they could forgive to promote the formation of a new relationship. Victims will get out of hatred and rationally treat criminals. Victim's forgiveness is the foundation of criminal reconciliation, is also a part of the judicial perspective. We should not simply focus on punishment and revenge for past, but should focus on the construction of the future and prevention. People may not be able to forget the past, but they can forgive the past. Forgiveness is a creative act that would create a brilliant future and leap up with hope.
Stepping Towards Rationality of Criminal Reconciliation
The performance of the offender and the victim's forgiveness, as important factors of restorative justice, promotes a reasonable, rational and legal dispute settling rule. The symbol of dispute resolution is to have the damaged social relations rebuilt,, and aims to establish, maintain lasting future oriented social relations. Criminal reconciliation as a possible proposition launches for a non-violent and non-revenge culture. In the process of reconciliation, we need justice culture and guide people to establish fair social relations. Don't let other do the things you don't want. At the same time, we also need to forgive in culture. Forgiveness is the victim's privilege, making them get rid of the past and become better people. Indeed, the criminal reconciliation system is to be founded on the basis of certain social relations, avoiding becoming water without source and a tree without roots.
The ultimate goal of the social main body and social intercourse is the ethical relation reconstruction. In this way, we should get the reason out of the self-closed system and accept the restriction from the moral law. It needs to look for the foundation for itself.
The rational reconciliation needs to follow such a few principles.
l.The principle of standard
When Confucian society expressed reconciliation, it was undoubtedly subjected by philosophy idea in a control point and a moderate course, but this emphasis on positive philosophy is not simply to sell reconciliation in the world of pure spirits, but to stress the importance of reconciliation rules in daily life. That is, "In the application of the ceremony, harmony is precious. In the governing method of kings, the valuable is right here. Whether it is bagatelle only depend on the harmonious way, although sometimes not. But for the harmonious and harmonious, not by ceremony moderation harmony, is not feasible". The Confucianism thought of "harmony" has been pursued as disputes claims. Without courtesy as a prerequisite and condition, importance and effectiveness of reconciliation is impossible. At the same time, for the harmonious and harmonious is also blindly discouraged. Confucius on this issue is meaningful, "Some people say: 'with kindness to repay resentment, how about it?' Confucius said: 'so what repay kindness? We should use integrity to repay resentment and kindness to repay kindness.'"
In the The Analects of Confucius , the Confucius seemed to worry that people would hope too much as to the returning good for evil, so in the dialogue with middle school students in the form of a question on this issue , he placed it in significant position to cause enough attention. Feeling that this is still not enough, Confucius continued to question the way forward "so what repay kindness", instead of immediately answering the question of "return good for evil". .After all these twists and turns, he put forward with the proposition that one good turn deserved another.
Justice in return for injustice and using kindness to repay kindness is two positive principles. In other words, putting the social members in the dispute must in the program and strategy for justice in return for injustice. The "straight" here can be understood as the justice, and in the same way, can also be interpreted as rules and regulations. The latter as the application of' the reuse of the honest man, placed above the dishonest people, can affect the social atmosphere, so that no man of integrity will be right. ". At the same time, the two positive principles also raise two corresponding negative principle, namely "revenge" and "return with kindness". The former is the typical form of revenge, retaliation by private force relief for features; the latter is with forgiveness, tolerance for the content of the negative self-relief. Therefore, in the Confucian culture, "revenge" and "return with kindness", is not only the principle of dealing with "justice in return for injustice" in the different disputes. The principle of dispute is not advocated by Confucian principles.
The idea of returning with kind forgiveness is the negative self-relief which content is tolerance. The pursuit of criminal reconciliation system is a kind of composite restorative justice, committed to the promotion of crime personality and social role of the restoration, committed to repair the damaged social relations and resolve disputes by peaceful means on the basis of dialogue. The unique pursuit of legal effect is trans-
formed to the pursuit of social transition effect, law effect and political effect. The scope of criminal reconciliation cases, applicable conditions, applicable procedures and measures, legal supervision etc. need the strict limit to comply with the tradition of Chinese "strict justice" in the judicial practice under the existing legal framework to make adjustment and improvement. Considering the processing mode of criminal reconciliation is different from the traditional criminal procedures. When tolerance is not high in the society, it's easy to be misunderstood as "indulgence of crime" and "spend money on punishment" by public. Therefore, prudence is very necessary.
2. The principle of subjectivity
The reasonable existence of the specification provides conditions for dispute resolving. Even if the parties have the same cognition to the specification, reconciliation is impossible, when they lack mechanism to truly make reconciliation. The mechanism is various in this discussion. Both parties should establish the cooperative atmosphere and conditions in order to force the dispute to solve the mechanism. Whether private remedy or relief of public force, people tend to regard the parties as a dispute resolution object, equaling to the fact that parties are the objective role in the eyes of dispute resolution. That is to say, in the whole process of solving disputes, the parties can only be a statement of fact, the speaker and the results of passive recipient, but it can't decide the outcome of the case by itself.
How to make the parties become the settlement of the dispute requires the establishment of subjectivity principle to resolve the dispute. The dispute settlement results controlled and decided by the parties, would respect the will of the parties, give the parties the same status of equal dialogue and free negotiation position. But persuasion is only supplementary, rather than the leading factor. Indeed, the subjectivity principle does not rule out the function of the agent. For those people without ability, limited capacity or others unable effectively to express their will, agent mechanism should play a role as an intrinsic part of one of the parties.
3. The role principle
Chinese society is a society of acquaintances. Different from the state of no disputes in the cooperation, in this state, it is the pursuit of increasing interests in win-win situation, and in the cooperation of dispute, people tend to avoid the interests of mutual loss situation. By avoiding the interests of mutual loss to the interests of a win-win situation requires not only the principle of subjectivity principle of justice and equality of treatment, but also need to take care of the parties for development and future aspirations of social relations. For that, the parties already in the state not only need proper distribution of benefit, but also need position of relationship. If the hostile relations or relation with strangers' concept is still in play, the resolution of disputes is not only useless, but also, I'm afraid, running counter to their desire.
The story of Neighbor stealing an axe tells us, the subjective identity of one party to the other in the dispute will affect people's judge. Before beginning to solve disputes, the fact that the other party positioning uncompromised had closed the door of reconciliation in advance because of settling with enemies or optionally integrating with strangers, in any case is contrary to human sense to move. That is to say, if we set many of the enemies or strangers in the concept in advance, there will be many imaginary enemies or strangers that will fight with us. This not only couldn't solve the dispute, but also would become a source of disputes. Because you are the enemy, I will destroy you; because you are stranger, I will suspect you or not believe you. The judge of the nature of the relationship increases difficult in the dispute resolution. The concept of new acquaintances would get rid of the idea of us-against-them, and want to break the boundary of acquaintance-stranger, set up the new neighbors concept. Thus the increasingly close contact among social members would be replaced under the category of family. In other words, the principle of division of acquaintances will be to extended break the "insiders" and "outsiders" in general, put an ethical functional community extended to the moral community.
Role reflects the difference between people in the real world, but also because of its inner norms, but also because controlling the boundary members of the society action. Therefore, the definition of a relationship is actually in the definition of reduction role, and people will realize the consequences by the role of rule restrictions. The ethical, political and legal identity and occupation status can be reflected to a certain role. In order to ensure that the private relief can play an important role in a certain extent after rights infringed, it is necessary to make the role of rules not only become the basic rules for people's communication, but also become the dispute settlement rules in the conflicting state. The role orientation of victims could "involve in deciding how best to solve and correct offenders" with criminals. In this process, the main goal is to meet the victims' need and promote to give both parties the rights and make both sides satisfied with the program, promote to reach a settlement of disputes, restore the balance.
