The legal principle of crime and punishment   

Article third the law expressly provides for the crime of conviction and punishment, in accordance with the law; the law does not expressly provided for the crime, shall not be convicted or punished.

One, development process

Origin: John 1215 king signed the "Great Charter" the provisions of article thirty-ninthIn eighteenth Century, 17, bourgeois enlightenment thoughts and principles of law: the 1810 French penal code article fourth of criminal law of the principle of legality

Two, the ideological foundation  Taking democracy as the foundation, to limit the national power of punishment, the protection of human rights.

First, democracy                 

By the public authorities (China's National People's Congress) to make crime and punishment. The punishment is the citizen according to his own will, a manifestation of self - restraint, not imposed by others, is that we in order to protect the safety of society, in order to protect the legitimate rights and interests of the criminal, the protection of personal freedom of citizen and worked out (autonomic principle)[1]. A judge is only in the execution of the will of the people.

Second, human rights

After the law, citizens know what behavior is a crime, will be what kind of punishment, thus, to avoid the unfair treatment by state organs (not criminals are treated as criminals, crime free conviction and sentencing, in order to protect the human rights).

Reflection.Obviously, the legal principle of crime and punishment to safeguard the criminal's rights and interests, why should emphasize the importance of protecting the harmful consequences of crime of human rights to others or society, rather than on the punishment, is this not the appeasement of the crime?

1．The key is how to understand the "extension of protection of human rights" in the "people". The people here not only refers to the criminal, but also including the ordinary people of society. Because everyone in the society has been a criminal prosecution, the defendant may be. The principle of legality, will limit the national power of punishment within the limits prescribed by law, to avoid the abuse of power, the implementation of crime is not the people in the society can not be considered a crime, even though the crime will be treated fairly. Therefore, the principle of legality is not "the criminal indulgence", but to the legitimate rights and interests of the protection of human society in general.

    2．This is also the result of weigh the advantages and disadvantages. Emphasis on state power of punishment, the analogy system, may make the criminal law has no provisions for the crime, but with serious social harm of individual behavior due punishment, not indulge crime, however, is likely to make the innocent people by mistake punishment, or not to be treated justly crime person. These are not conducive to the concept of fairness and justice, construction, transformation is not conducive to crime, or even cause miscarriages of justice, the ordinary people of society may have felt panic, not conducive to social stability. However, the provisions of principle of legality, although the serious social harm of individual behavior is not punishment, but to avoid the above drawbacks. Obviously, the latter more than the former. The lesser of two evils. Just asJohn-Rawls said, if we can use an injustice to avoid a greater injustice, the injustice is acceptable.

3．This conforms to our country present situation. 79 years of our country criminal law has not stipulated the crime punishment legal principle, on the contrary provisions of the analogy system. On the rationality of the system or not, we should not simply in the present human rights standards to measure and judge, we can only put the system in the condition of continue evaluation. In the beginning, the society is not stable, the existence of a large number of serious harm to society, the people's interests, but the legal system is not perfect, if the implementation of the principle of legality, strict, there must be a large number of behavior that is harmful to the society, because the criminal law does not expressly provided for the crime, and not be punished for the crime, so not be punished, and affect social stability. Therefore, weigh the advantages and disadvantages under the environment at that time, the rights of others, a sacrifice, to safeguard social stability. To 97 years, China's social order is stable, the legal system is increasingly perfect, people's rights consciousness has become stronger, so cancel the analogy system, provisions of the legal principle of crime and punishment is ripe. Thus, we can see, the state public power and the private rights of citizens, stable social order and protection of human rights, are the two aspects of the unity of opposites, we can not generally say which is more important, can only put down on the concrete national conditions to discuss. From the national conditions, the pure emphasize one side is not scientific.

Three, meaning

"Nullum crimen sine lege, nulla poena sine lege".

Specifically: (1) what are the crime, what is the constitution of all kinds of crimes, which kind of punishment, the penalty for how to apply, and how specific sentencing range specific crime, criminal law has stipulated. (i.e. "legal regulation of crime, punishment")

(2) no criminal law expressly provides for the crime shall be convicted and punished. (i.e. "nullum crimen sine lege, nulla poena sine lege")

Four, content (four deriving principles)

(a) form side

The 1 source of criminal law: the implementation of the statute law, case law, customary law and the exclusion principle;[2]Also known as: legal principle[3]

2 legal punishment: reject absolutely indeterminate sentence[4]To determine the relative legal punishment, apply;

3 strict prohibition of analogy interpretation, guilty[5];

4 in the retroactivity, prohibition law retroactivity[6].

(two) the substantial side

1 clear principles, namely the law on crime and the corresponding penalty should be clear.

While 2. penalty regulations, refers to the provisions of criminal laws and regulations of the crime and punishment, there must be reasonable based on the behavior of crime and punishment, and the crimes must be balanced or appropriate. The first ban on the punishment is undeserved punishment behavior, secondly, demand the prohibition of cruel, unbalanced penalty.

Form side to restrict judicial power; the substantial side to limit legislative power.

 

Icons:

 

Limited legislative power The 1 principle of definiteness; As the 2 principles of penalty regulations.	The limit of judicial power 1 the implementation of statute law; The 2 is to determine the relative legal punishment; 3 strict prohibition of analogy interpretation, guilty; 4 prohibits law retroactivity.
To limit the national power of punishment
	The peopleThe Lord	Human rights

 

 

Comment on: the basic meaning of the principle of legality is: crime and punishment, must be based on national mean, prior to the prescribed.

The principle of legality is the essence of the criminal law. It is not only the judicial application of the criminal law must follow the principles of criminal law, is also the legislature must follow the principles of. The thought origin of legal principle of crime and punishment is the ideological basis of evolution significance, more practical significance, both forms of side, and substantial side.

One, that the principle of legality is the law on crime and punishment, regardless of how the content point of view, the expression of the legal principle of crime and punishment in the form of side, expression of the basic requirements for judges to follow the law, has its rationality. One of the basic ideas of modern principle of legally prescribed punishment is democratic, representatives elected by the people. The legislature to the development of criminal law, the criminal law reflects the will of the people. The formulation of criminal law, the judicial process, judicial organs in criminal law, and is the process of the will of the people. If not, what is the behavior of crime, the crime punishment, entirely by the judicial authorities decide, on the contrary to democratic principles, of course violates the law, the legal principle of crime and punishment form side. Because the criminal law reflects the will of the people, the judicial authority can not be free to interpret the criminal law. The judiciary's mission is to faithfully execute the laws, instead of evaluation or change the law, which reflects the form of the requirements of the rule of law.

Two, but don't care about the substantive requirements stipulated in the criminal law of the content of view itself violates the crime punishment legal principle, has the unreasonable aspects. Don't care about the content of criminal law point of view, will lead to tolerate two unreasonable situation under the principle of legality: one is the legal provisions are not clear, vague language; two is formulated with interference and cruel criminal law, namely "evil law is also the law.".

The modern ideological foundation of democracy and respect for human rights is a legal doctrine. The two ideological foundation also determines the real side of the principle of legality. Because the criminal law is decided by people, so the legislature shall make no law violation of the will of the people. The most easy to violate the will of the people, is the law is not clear and make bad law to harm the people "". So the real side of the principle of legality consists of two aspects: one is the specific provisions of the criminal law; two is the appropriate content of criminal law and regulations.

(a) the principle of definiteness

Requires that criminal law regulations content can not be vague, must be specific, definite. If the elements of the content is not clear, people can not according to the law to predict the consequences of my actions, and the principle of no law without any difference. The provisions of the criminal law will inevitably lead to the judicial organ that enlarge the scope of punishment, against the will of the people.

(two) content appropriate principle

Must be the criminal punishment is appropriate and fair, only with reasonable punishment according to act as the object of penalty, and there must be provision for the severity of the phase equilibrium of crime and punishment. Contains two requirements: one is the prohibition of improper punishment punishment behavior; two is the prohibition of cruelty, unbalanced penalty. In order to prevent lawmakers over against national freedom, excessive abuse of human freedom, establish the justice, equality of the penalty system. Content adaptation is principle against the evil law is law.

In short, the substantial side is to make the crime in law become a respect for individual freedom, realize social justice, not only restrict judicial power and restriction of legislative principles, in order to achieve substantive law.

Three, the conclusion

That the principle of legality is the law on crime and punishment, regardless of how the content point of view, is one-sided, only reflects the principle of legality form requirement, it deviates from the essential requirements. The principle of legality of modern ideological understanding, must be based on this principle, a comprehensive interpretation, which not only conforms to the law requirements, and meet the requirement of the rule of law in essence.

 

The principle of legality, experienced a development process which is legally to the relative legality and absolute. The criminal classical school from personality identity, will emphasize the absolute freedom, that crime is a behavior of human free will choice, then the behavior is criminal law evaluation center, which adhere to the absolute principle of legality for the behavior of human behavior. Specific performance: in the criminal law origin, absolute exclusion of customary law; the absolute determination of legal penalty; prohibit all analogy; in the retroactivity, prohibition of all afterwards method. The Criminal Modern School denied personality identity, deny free will, that environment determines the behavior of people, actors dangerousness is criminal law evaluation center, which adhere to the principle of legality, the relative determination. Specific performance: the customary law, but admitted its complementary effect; the relative determination of legal penalty; prohibiting guilty analogy, allowed to have reason to the innocent analogy; prohibited severely retroactivity. The absolute and relative crime statutory crime legal claim to limit the national power of punishment, to protect human rights, but the more the relative legality principle conducive to the protection of human rights. The modern world has statutory basically is the relative legality principle.

Five, adhere to the principle of legality issues bring

Some have serious social harmfulness behavior, because no law expressly not deemed a crime, not punishment, which has serious social harmfulness behavior does not have criminal illegality, if such behavior to a certain extent, is not conducive to the stability of social order. Thus, the two value conflicts may cause human rights protection and social security.

  First, we still insist, cancel the analogy system, stipulate the principle is consistent with the spirit of the times, is a scientific. For this problem, we can adhere to the principle of legality of the solution, through the following ways: put forward amendments to the criminal law, timely legislative interpretation, judicial interpretation of criminal law is to discover the inner meaning of the scope of judicial authority in the legal authority, or making special law, means of accessory criminal law for criminal law code. At the same time, the right of criminal policy is necessary, such as China's current criminal policy of combining punishment with leniency. Unified by these means can guarantee human rights and protect society, thus "fish and bear's paw can get and"!

Six, embodied in our criminal law

1．Cancel the analogy system, 97 article third of the criminal law expressly provides for the principle of legality, namely "the law expressly provides for the crime of conviction and punishment, in accordance with the law; the law does not expressly provided for the crime, shall not be convicted or punished."

(have a different understanding, the article third of the criminal law scholars have insisted: front is intensified, the national penalty right deviation limit the national power of punishment, the protection of human rights spirit. And that should be removed before. Some believe that, some not to the national penalty power strengthening, but stressed that "in accordance with the law". Some people think that a positive, negative negation, semantic repetition, make an unnecessary move. Zhao Bingzhi argues that "in accordance with the law shall be convicted and punished behavior")

2．The crime of statutory. Specific performance: defined the concept of crime; clearly stipulates the common requisites in constitution of crime; clearly defined elements of various specific crime.

3．Implementation of the statutory punishment. Specific performance: Specifies the kinds of punishment; clearly stipulates the principle and system of punishment and sentencing; clearly stipulates the crime legal punishment.

4．On the retroactivity of criminal law, the criminal law ninth stipulation from the old and mitigating the principle.

5．Compared with 79 years of criminal law, specific provisions increased significantly, charges also increased. Enhance the operation of the law, focusing on specific circumstances of sentencing.

Seven, judicial application

1 beIn accordance with the lawConviction and sentencing;

2 the correct judicial interpretation.

Judicial interpretation expansion exist in practice, intrusive legislation in the field of judicial interpretation. The judicial authority beyond the scope, not in conformity with the judicial interpretation of criminal law is to violate the principle of legality. The principle of legality of the "law" is the "criminal law" (Legislative Law) meaning, not all of the law, nor the judicial interpretations, more than administrative regulations, local regulations and so on. The legislature legislative interpretation is in accordance with the requirements of the principle of legality, but the judicial interpretation of criminal law is to explain that according to the concrete, to the implementation of criminal law, the criminal law to adapt to the changing realities. The only made in conformity with the judicial interpretation of criminal law to conform to the requirements of the principle of legality in the permission range.

Eight, the principle of legality significance(see Cass East, Gwen Stefani's words)

1．To limit the national power of punishment, the protection of human rights, not only protect the suspect, the defendant be treated fairly, but also protect the ordinary people of society from the wrong prosecution. Because the citizen already know what behavior is influenced by social prohibited acts, but also to understand if these acts will be what kind of punishment.

2．The crime and criminal punishment is the "deterministic", which can guide people's behavior, and deter criminal tendencies of people, crime prevention.

Nine, the legal principle of crime and punishment in principle system status

Is the foundation of other basic principles of criminal law. (if not, how could the crime punishment prescribed by law, but the tyranny, the punishment to adapt, how could realize equality before criminal law)

 

Exercises

1On the legal principle of crime and punishment, what is right? Reference resources.04,06Scott test)

A.   The legal principle of crime and punishment prohibited by analogy to explain and expand the interpretation, but not the prohibition of analogy to the defendant's interpretation

B.    The legal prohibition of the judicial authority of the analogy to explain, but does not prohibit the legislature analogical interpretation

C.   The principle of legality is not conducive to the ex post facto laws banning the use of people's behavior, but does not prohibit the use of ex post method for human behavior

D.   One of the ideological foundation of legal principle of crime and punishment is democratic, and habits can best reflect the will of the people, therefore, will be used as the sources of criminal law does not violate the principle of legality

E.    The principle of legality of the "law" includes not only the state legislature enacted law, but also for the highest organ of the State Administration of law

Answer: C. A, the legal prohibition of analogy to explain, not expanding interpretation, expanding interpretation is ethical interpretation of criminal law interpretation method. B, prohibit any organ of the analogy to explain. D, in its origin, rejection of customary law, the statute law. E, the legislative law.

Study section

1Answer: the basic content of the principle of legality (06Years)

79 years of our country criminal law has not stipulated the principle of legality, the penal code of 97 years from the respect for democracy, the protection of human rights spirit, in the penal code article third expressly provides for the principle of legality, " law expressly provides for the crime of conviction and punishment, in accordance with the law; the law does not expressly defined as criminal acts, shall be convicted sentence." This has milepost sense.

 The basic meaning of the principle of legality is: "nullum crimen sine lege, nulla poena sine lege". Specifically: what crime, what is the constitution of all kinds of crimes, which kind of punishment, the penalty for how to apply, and how specific sentencing range specific crime, criminal law has stipulated. No criminal law expressly provides for the crime shall be convicted and punished.

The principle of a legally prescribed punishment for four derived principle: in the source of criminal law, the statute law, customary law; the legal punishment, rejection of absolute Indefinite Penalty; strict interpretation, prohibiting guilty analogy; in the retroactivity, prohibition law retroactivity. In addition, now the crime legal principle and new knowledge and understanding: such as legitimate principle, the principle of penalty regulations.

2Explanation: the legal principle of crime and punishment (07The comprehensive test questions)

Legal principle of crime and punishment, namely "nullum crimen sine lege, nulla poena sine lege". Specifically: what crime, what is the constitution of all kinds of crimes, which kind of punishment, the penalty for how to apply, and how specific sentencing range specific crime, criminal law has stipulated. No criminal law expressly provides for the crime shall be convicted and punished.

The principle of legality specific requirements: in the source of criminal law, the statute law, customary law; the legal punishment, rejection of absolute Indefinite Penalty; strict interpretation, prohibiting guilty analogy; in the retroactivity, prohibition law retroactivity. In addition, now the crime legal principle and new knowledge and understanding: such as legitimate principle, the principle of penalty regulations.

79 years of our country criminal law has not stipulated the principle of legality, in contrast, provides the analogy system. Taking democracy as the foundation, to limit the national power of punishment, the protection of human rights, 97 article third of the criminal law clearly stipulates the legal principle of crime and punishment, which has an important milepost significance.

 

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