The spatial scope of application of criminal law, the criminal law effect also known as space, the solution is a criminal law applicable to what people in what geographical problems. From the provisions of the criminal code and the international treaties, the law can not only apply to the country in the field of behavior, which can be applied in domestic field under the condition of certain behavior. Law principles applicable scope in space on the decision of the criminal law, criminal law is applicable to a [1].

Scope of application of criminal law in space, relates to the domestic made (to happen in our country in the field of crime and crime (foreign) occurred in domestic areas outside the crime) effect, the principle of territorial jurisdiction and personal jurisdiction principle are the two basic principles, the other principle is the supplement and development of these two principles.

The application of space principle in our criminal law is the principle of eclecticism in territoriality in democracy and protectionism as. Article sixth of the criminal law provisions in the first paragraph: "anyone who commits a crime in the territory of the people's Republic of China, except when otherwise stipulated by law, the law is applicable to." This is the stipulation to the principle of territorial jurisdiction.

While we are talking about personal jurisdiction, is the active principle of personal jurisdiction, namely its citizens in a foreign crime, also apply their criminal law [2]. In view of the principle of territory positive personal jurisdiction principle lies in the basic principles and their citizens respect for national sovereignty and comply with international law today is easy with the international law in the conflict. So the author thinks that, the punishment on the principle of territoriality said (Joint National Crime Prevention say), namely its citizens in a foreign country where crime principle applicable criminal law, but the behavior person not punished and return to the country, according to its citizens not to extradite the principle, not the extradition of its own nationals abroad punishment, but the country cannot become the crime haven, it should apply their criminal punishment is reasonable views [2].

China's criminal law provisions of article seventh of the principle of personal jurisdiction. Article seventh of the criminal law provisions of the second paragraph of "other Chinese citizens outside national staff and soldiers of the crime in Chinese criminal law the crime in China outside the field of criminal law, principle suitable Chinese; but to the highest penalty stipulated in the criminal law of China for three years in prison, can not be prosecuted." According to the theory of criminal law "above, the following" are included in this number, then the "maximum sentence of three years in prison" include "maximum punishment of three years in prison"? This is a shortage of places in our criminal law system, is also a lot of criminal law scholars have been discussing the topic. So far has been the lack of compensation provisions effective explanations, but the academic about this problem has been the existence of "include" and "does not include" debate.

To this problem, the author thinks that should from the value orientation of our article seventh of the criminal law legislation and the criminal law of the unity of the legal system two aspects to carry on the analysis:

A

Seventh of the criminal law of value orientation

China's criminal law provisions of the Communist Party of China about 349 kinds of crime, subject of crime for the removal of specific national staff and soldiers and about 280 of crime. In this 280 kinds of crime, maximum statutory penalty for a period of three years. There are about 160 species, maximum statutory penalty for dissatisfaction in prison, detention or control three years only a deficiency of 15. The huge gap has practical issues in law application, if the provisions in the second paragraph of the criminal law seventh "maximum sentence of three years in prison" includes "the maximum punishment of three years in prison" will not include the case of "can not be held" ten times as big as the object scope many. The huge gap between the object scope just reflect China's criminal legislation and criminal legislation on the value orientation of the future development trend.

From the legislative intent of article seventh of the criminal law on the view of second proviso is the substantive content of the performance. The front half part of the provisions in the second paragraph of the "other Chinese citizens make the provisions of the criminal law the crime in China outside the field of criminal law, principle suitable China" is more a matter of sovereign Xuan type rules. Therefore, the significance of this part is the most important is that the criminal law of our country civil jurisdiction in the extraterritorial criminal, "in principle" is to apply the criminal law of our country. By second, but the understanding of the content we can clearly see that, this is not the purpose of legislation in criminal justice of our citizens to realize the extraterritorial criminal punishment. Because the provisions of the criminal law principle of personal jurisdiction is based on maintaining national and the interests of citizens (including Chinese citizens avoid undue punishment in foreign countries), which contains the international cooperative principle. From the ideological origins and the legislative purposes, the value orientation of article seventh of the criminal law legislation in China is inclined to protect the interests of citizens including the interests of the accused. In order to value orientation and the article seventh of the criminal law legislation is consistent, the author thinks that the provisions of article seventh of the criminal law of the "maximum sentence of three years in prison" of course should include "the maximum punishment of three years in prison", because the only way to complete reflect the protection of citizens (including the defendant) interests tendency. If not, then the proviso stipulated "can not be held" object is only less than 15 kinds of crime, this is clearly and legislative value orientation of the strip and the real intention contrary.

Two

The unity of the legal system of the criminal code

From another point of view, the criminal law seventh stipulation "can not be held" is the object of "maximum sentence of three years in prison", also is our criminal law theory and judicial practice in the so-called "misdemeanor". Then, in the face of "maximum punishment including three years in prison" or not to include "the maximum punishment for this problem are to be sentenced to three years", we need to consider is whether the "tallest penalty of three years in prison is a felony or misdemeanor?" If the maximum punishment of three years in prison is a misdemeanor of course should include, if the felony naturally does not include.

The author thinks, our country criminal law system is complete, the spirit of the legislation of criminal law is consistent, so we can consider this problem from the consistency of the system of criminal law.

China's criminal law, the probation system is sentenced to criminal detention, the following, three years in prison for crimes, according to the circumstances of the crime and the performance of repentance, if the stay of execution of sentence not do harm to the society, it can provide a certain test period, suspension of criminal law enforcement; if the offender to comply with certain conditions in a test period, the punishment will no longer perform. Reflect China's probation system is the criminal policy of combining punishment with Leniency: crime plot and repentant, can apply probation [3]. The primary conditions of probation probation is "applies only to be sentenced to criminal detention or imprisonment less than three years of offenders". The so-called sentenced to criminal detention or imprisonment less than three years, is the sentence, rather than the legally prescribed punishment, even if the minimum statutory penalty than three years in prison, but because of the extenuating circumstances and sentenced to three years in prison, may also apply probation. The degree of risk and the severity of the sentence length of crimes and the crime person to adapt, considered from the protection of law and crime prevention, probation is only applicable to the offence is a minor crime people [4]. Through the probation system, we can clearly see that China's criminal law tend to be declared criminal to three years in prison for the crime and punishment for misdemeanor, for a period of three years. The crime of the maximum statutory penalty or even the minimum statutory penalty may have more than three years in prison. That is to say "the maximum sentence of three years in prison for" crime than the "punishment for the social harmfulness of crime are to be sentenced to three years of" lighter, degree of danger which offenders are lower.

Because of our country's penalty system is in the legislative spirit and value orientation. In the probation system in criminal law will be declared punishment to three years in prison for a crime in the criminal law, so the extraterritorial application of China's citizens crime on should be "the highest punishment for that period of three years in prison for crimes". Because the only way to safeguard the unity of the legal system of the internal integrity of the criminal law system and the criminal law system. If, in the probation system will be declared punishment to three years in prison for a crime, and on the "Application of extraterritorial criminal law of our citizens tallest penalty of three years in prison for that" as a felony, disrupts the integrity of the criminal law system, contrary to the law of the principle of unity, a contradiction in the criminal law, but also damage the authority of criminal law! Because the criminal code is called a "code" is because of its internal unity, the legislative spirit and value orientation is the same. If the code inside there will reduce their reliance on the penal code and the expectations of the legal consequences of such contradictions apparent, this will destroy the authority of criminal law.

In addition, because of the conflict of personal jurisdiction principle is easy with the other countries of the principle of territorial jurisdiction, in the practice of criminal justice is difficult to implement. Therefore, the provisions of the greater value lies in the determination of China as a sovereign state's judicial independence, indicates that China's law on civil extraterritorial criminal justice without the interference of other countries, is a reserved rights an oath of the provisions. From this point of view, article seventh of the criminal law to determine the scope including the maximum sentence of three years in prison not only safeguard the rule of unity is not difficult to criminal judicial practice.

To sum up, the author believes that the application of criminal law in the extraterritorial crimes of our country citizen on only the "tallest penalty of three years in prison for crimes" as a misdemeanor, and will be provided for in the second paragraph seventh of the criminal law "as the highest punishment for three years following the unification of legal system to maintain life of crime" the penal code. The value orientation which conforms to the legislative purpose of article seventh of the criminal law of the whole criminal code, can effectively avoid the object of article seventh of the criminal law of the proviso under 15 kinds of crime and exist in name only, is the most consistent with the existing legal system of interpretation.