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我国现有惩罚体系有其合理性、现实性和历史继承性,应在维持其基本框架的前提下,遵循法治精神,兼顾人权保障的公正价值和社会治理的效率价值,对这一惩罚体系进行调整,即取消治安管理处罚法等行政法律中的行政拘留,并对这些法律的惩罚类型进行优化,同时将以剥夺自由为内容的惩罚类型全部纳入刑法.以应否剥夺自由作为区分刑法与规定有惩罚内容的行政法调整范围的标准.由此以刑罚可罚性判断作为刑法调整范围应然界限的主要根据,进而寻求一条合理均衡的犯罪化路径,形成合理公正的惩罚体系.“,”China’s existing punishment system is rational in that it accords with realities and is based on historical continuity.Any adjustments should only be premised on maintaining its basic framework and upholding the spirit of the rule of law while promoting equitable human rights protection and efficient social governance.That is,the administrative detention stipulated in such administrative laws as the Public Security Administrative Penalties Law should be abolished;the type of penalty in these laws should optimized;and at the same time all penalties aimed at depriving people of their liberty should be transferred to the Criminal Law.Whether deprivation of liberty is involved should be made the criterion for distinguishing the range of adjustments to the Criminal Law and those administrative laws that stipulate penalties.Therefore,judgments of the punishability(strafbarkeit)of criminal penalties should be made the main basis for adjusting the de jure boundaries of the scope of the Criminal Law.We should develop a rational and balanced criminalization path and a reasonable and just system of punishment.