China Criminal Law Research Association2012A summary of the annual conference

The coordinated development of criminal law and criminal law protection of the Constitution and strengthen the people's livelihood

  Procuratorial daily2012-10-12 07:02:00  Liu Jinlin

      2012 9Month25DayTo27Day2012The national criminal law academic annual meeting was held in Zhengzhou city. Year by Chinese Criminal Law Research Association,The Henan Provincial Higher People's court, the people's Procuratorate of Henan Province, Henan University of Economics and Law and the Zhengzhou University Co hosted.

The current annual meeting is divided into theoretical issues of contemporary Chinese "criminal law and constitutional development -- to commemorate82Constitution30Anniversary "and" practical issues on the background of criminal protection problems of several important areas of people's livelihood ",From universities, judicial practice300Delegates on the above issues to discuss. During the meeting of the first session of the national criminal law Outstanding Doctoral Dissertation Award ceremony.

■ contemporary China criminal law and constitutional development

　　Relationship between constitution and criminal law.

  "The constitution has a coercive effect on Criminal Law,But the constitution of criminal legislation and judicial has guiding role",Beijing Normal University professor Zhao BingzhiAlso present,The development of criminal law to the Constitution can affect.Professor Kang Junxin of Wuhan University School of lawAlso think,Although the Constitution and criminal law is the relationship between the upper and lower law,The constitution is the basis and guidance of the criminal law,But the existence of "interaction" between the development of China's constitution and criminal law,Such as exist in the practice of criminal law norms to bring the text of the constitution amendment to modify the phenomenon. For both the "interaction",Zhejiang province Jinhua City Police School professor Fu YuejianAdded,It is also reflected in the criminal law principle of constitution,To achieve the best criminal law on the protection of human rights,Not only to perfect the criminal law itself,It is more important to the principles of criminal law has stipulated in the constitution. Li Ziping of dean of the Nanchang University law school think,As an important part of Public Governance,Change constitutional pattern will produce important influence on other public law and private law field including criminal law,And put forward the integration of constitutional construction patterns go beyond the upper and lower for the current response of the current public governance of social reality. He suggested that the criminal law to "social practice multi-core governance".

　Two, the guide to the criminal law.

Many people will guide the focus of the constitution to the criminal law on the concept level. "The value orientation of criminal law should conform to the objective constitution,The constitution contained the control idea and the value of the human rights should be run through the whole China criminal legislation." Associate professor Wang Pengxiang of the Henan Normal University School of law thought,Since our country1982Since the establishment of constitution,Has produced profound influence penal system constitution established the principle of the rule of law, basic human rights principles, the principle of power restriction on China,The idea of criminal law in China has undergone profound changes,But the current,The basic concept of legality should be emphasized, moderate crime, pay attention to punish effect. Renmin University of China professor Xiao Zhonghua think,In the background of the constitutional development,China's criminal law idea renewal is mainly embodied:To maintain the order of human rights protection,That is the value orientation of China's criminal law has experienced "order of priority, taking into account human rights" to "the development of human rights, taking into account the priority order";Just the idea of equal protection under the law of various economic entities;"Under the concept of moderate crime. Soochow University professor Peng Wenhua Kenneth Wang law school this,In order to balance the relationship between public interests and personal interests,The principle of proportionality attention,The principle of proportionality in its constitution in China Profile,The basic value orientation of the Constitution,This requires changes to control crime concept in the criminal legislation, judicial activities,To establish equal, ensuring human rights and controlling the crime to protect the human rights of criminal law,Specifically:To the criminal law of human rights from the kingdom of criminal law,The autonomy of criminal law in criminal sanctions,To comprehensive criminal from criminal law. Yu Shizhong of dean of the Zhejiang University of Technology law school think,Should be based on the basic spirit embodied in the development of constitution,The paper from two aspects to update the concept of criminal law:One is to realize the equal protection,Including all kinds of economic entities to equal protection and equal punishment on all kinds of crime subject to;Two is the strict implementation of the legal,Include to eliminate legal conviction and sentencing, prevent crime, prevent analogy is not conducive to afterwards method defendant and eliminate the pocket crime.

Some scholars put forward the specific direction of the criminal law. Professor Ou Jinxiong of Guangxi Administrative Cadre Institute of politics and law thought,In beyond count in the criminal constitution theory,Theory of the existence of the conclusion is different in the case of some crime conviction,Therefore,If the crime in judicial practice. The theory of allowed diversification,It might appear in different sentence condition,In order to realize the rule of law, human rights, constitutional equality concept,System of China's criminal law should establish a systematic, scientific crime.

Three, the constitutionality.

"The exercise of criminal legislation must be consistent with the spirit of the Constitution and content,This is the inherent requirement of the rule of criminal law",Associate professor Zhan Hongxing of the Central South University School of law thought,The Constitution limits the right of criminal legislation can be from four aspects:The main limitation of criminal legislation;The purpose of criminal legislation;Limit the number of criminal legislation;The criminal legislation conditions. For the legislative body problem,Chinese People's Public Security University doctor of law Li Huaisheng put forward the limits of legislative power of National People's Congress and its Standing Committee law,And proposed in the draft law to amend basic laws that,The NPC Standing Committee shall explain and amend basic laws of power legitimacy for their own,Description of basic laws are "and amendments",The basic principle of "no violation of the law". Associate professor Li Fengmei of the Shenyang Normal University School of law put forward,China's current criminal law "based on the law of economic considerations" legislative drafting,As a legislative remedy means "",Given a class of qualitative fiction facts and the facts to the legal consequences of the same,In the name of the legislation on legal form,Against the constitutional protection of human rights spirit and principles.

For freedom of speech, publication, assembly, association, parade, demonstration of the right to freedom,Professor of Zhejiang Gongshang University law school Wu Ping said,"None of the above on citizen's right to freedom in the constitution to make exceptions case,The provisions of other laws and regulations make no exception,The problems of Constitutionality in China's criminal law provisions of the deprivation of the liberty." But the Criminal Law Institute of Beijing Normal University professor Wang Zhixiang put forward,To understand the free contains the concept of the political rights of constitution and criminal law in the perspective of rights,Should be limited in the freedom has the political nature of the right range.

Shall be in accordance with the Constitution and the spirit of the constitution as the method of criminal law,Specific to the domain of interpretation of criminal law,He reflected on the criminal law and constitutional interpretation. Professor Zuo Jianwei of Beijing Normal University College of law thought,To explore the interpretation of the constitutionality of the problems in our existing legal context,The constitutional interpretation as "in the common law in trial of cases,Judge through the interpretation of the law and the constitutional spirit into the standard system of "common law is desirable. Hebei University professor Su Yongsheng Institute of politics and law, put forward,In order to make the legal principle of crime and punishment to win support among the people in China,The constitutional interpretation should be carried through all the interpretation method,"In this case,Constitutional interpretation should not be an independent interpretation method,But should be one of the most important limitation of interpretation."

The people's livelihood problem - the protection of criminal law

The amendments to the criminal law(Eight)From the aspects of strengthening the criminal law for the protection of people's livelihood. On the basis of,How to from the constitution "the state respects and safeguards human rights" spirit,To further strengthen the protection of criminal law of people's livelihood,The theory circle and practice circle pay great attention to.

The criminal law protection, food, drug safety.

In recent years,The food safety crime scope,Bad influence degree of depth,Forcing people to consider the response from the angle of criminal policy. Beijing Normal University distinguished professor of Criminal Law Science Research Institute Chu Huaizhi think,The criminal policy of food safety crime has its unique value dimension,And the specific performance is to give priority to the protection of the right of life, health right and stresses the nip in the bud. China's current "severe but not strict" criminal policy,Can not effectively control the food safety crime. He put forward,Crime of food safety is a comprehensive system engineering,Need to crime control concept to establish the national and social double standard,At the same time, the establishment of food safety crime criminal policy of composite. Law China Academy of Social Sciences researcher Liu Renwen also believe that,The criminal legislation should be "severe but not strict" to "strict but not severe",Because of food safety crime as a statutory offence of typical,Will keep in the modification and development,It is closely related to the food safety law will be constantly revised,This legislative mode should be a true subsidiary criminal law and penal code combination.

On the criminal food safety legislation "lax",Fierce discussion. Criminal Law Institute of Beijing Normal University professor Liu Zhiwei think,At present, the existing criminal law on regulation of food safety crime is still confined to the "production, sales of" two links,May endanger food security for other aspects of the behavior can be beyond one's grasp,This artificially blocked the causal relationship between damage behavior of food safety hazards results with the real risk maker. Professor Huang Huaping of Chinese People's Public Security University law school this,Deficiency of the criminal protection of food safety performance for the penalty provisions of the lack of operability and no qualification penalty in the penalty set. Professor Guo Jiejun Jia Ling, Professor of Northwest University of Politics and Law Law School of Kunming University of Science and Technology thinks,In reality many food safety accidents are caused by negligence of producers, operators,But the consequences will be grievous,So the introduction of food safety crime of criminal negligence.

"The criminal law as the main means of governance to deal with social problems,Not in conformity with the principles of criminal law,"Zhongnan University of Economics and Law professor Tong Dehua College of criminal justice in the,The food safety crime as a crime of endangering public safety,Even rise to the level of endangering national security,Will encourage abuse of penalty. Professor Liu Shuang of Southwest University of Political Science and Law School of law, said,The criminal law protection of food safety must stick to the modesty of the criminal law,Prudent criminal legislation and the extension of the criminal judicial expansion,Based on the principle of "people first" principle, with "criminal law in advance" as the exception principle to establish food safety norms of criminal law protection.

"Poison capsule" incident still gets more attention. Professor Tong Weihua of Hainan University College of law thought,Although capsule for the purpose of treatment,But not so sure that drug capsule,Poison capsule can be attributed to the fake products in essence,But obviously with the fake and shoddy products in general sense can not be mentioned in the same breath,This legislation will only increase blow strength. East China University of political science and associate professor Ye Huijuan think,Medicinal hollow capsules fully comply with the definition of pharmaceutical excipients,Drug management law article32A medicinal materials interpreted as drug similar also logical,Therefore shall the medicinal hollow capsules as drug,Pharmaceutical producing enterprises purchase problem capsule should be taken as a fake.

In order to strengthen the protection of criminal law on food and drug safety,Many people put in food and drug crime should increase the provisions of crime,Such as the Zhejiang Provincial People's Procuratorate prosecutors Yu Zhiyue thought,Hazard food and drug safety of criminal social harmfulness of crime and crime of endangering public safety seriously,Have been unable to dangerous crime as the constitutive elements of the crime of conviction,All hazard food and Drug Safety Crime,Once implementation,May cause harm to human health,Shall constitute a crime to be punished. "Revision expect legislation will production, sales of counterfeit crime fully extended to other food, drug crime is not reality,But even if all the charges into crime,As there is causality in sentencing range." China University of Political Science and Law professor Yu Zhigang put forward different ideas,"Justice to dare to use 'criminal presumption' of the legal techniques,Seeking to determine the causal relationship between food, drug crimes in the sense of." East China University of politics and law professor Liu Xianquan said,Although the criminal law amendment(Eight)Article23Canceled original article of the criminal law141A "serious enough to endanger human health" provisions,But this does not mean that as long as the behavior of the implementation of the production, sales of fake drugs,All production, sales of counterfeit drugs crime.

How to ensure the food, drug safety,Most people think should be comprehensive treatment,Can not be too dependent on criminal law. Professor Jiang Xianjun of The Central Instituite for Correctional Police law school that,The frequent incidents of food safety,Negative regulation, government supervision departments supervision, post supervision passive is the deep cause recognized,The amendments to the criminal law(Eight)Although the food regulatory malfeasance,But the rational factor design is too simple, not to absorb the risk of criminal law,Still can not adapt to the need of practice. Professor Zhao Guoqiang of the Law School of Macao University,Implementation of unified food safety regulatory system is very important,We must solve the problem of "diversification" supervision system. Shanghai Hongkou District procuratorate procuratorial committee professional committee member Zhang Jian proposed,Change the food, drug safety "beforehand, law enforcement vacuum,After the assault type enforcement "phenomenon,We should set up and carry out the administrative criminal law consciousness,In administrative legislation, administrative law enforcement link according to consciousness and the pattern of criminal law to deal with the problem of.

Two, the criminal law protection of environmental resources.

On the value orientation of environmental criminal legislation,Academic have the "Anthropocentrism" and "the doctrine of ecological centre" two opposing the concept of the dispute. Criminal law research center of Hebei University director Feng Jun suggestions,Environmental pollution crime should be based on the whole ecological balance of the earth is the center of the governance mechanisms designed to;In the environmental crime,To distinguish between crime and non crime, felony and misdemeanor or standard and basis of penalty discretion should be human environment may suffer damage. Beijing Normal University professor Zhang Yuanhuang think,Both the dual object,Or the interests of environmental law, ecological law, is a product of legislation under the concept of harmony between man and nature,Just different center of gravity,Opposition does not exist the so-called "Anthropocentrism" and "the doctrine of ecological centre",These two concepts are not scientific.

Wu Dahua of dean of Academy of Sciences of Guizhou province society forward,Risk society from the perspective of China's criminal legislation of environmental crime may adopt the legislative model of accessory criminal law,Increase the risk of crime,The introduction of strict liability,The setup of the qualification penalty. Zhengzhou University law school vice president Ma Songjian further proposed the criminal negligence crime unit, environmental risk provisions of dangerous criminal of environmental crime. Associate professor Ye Liangfang of the Zhejiang University Guanghua School of law said,The requirements of building a harmonious society,Environmental criminal justice policy should change from loose to tight,Judicial organs should apply the principle of strict liability. But Professor Lou Bokun of Zhejiang Gongshang University School of law is that,The principle of legality under the guidance,In our country criminal law on the criminal to intentional and negligent culpability requirement,Environmental crime that should not be the strict liability rule. Associate professor Chen Jing of the Xinjiang University School of law thought,To adhere to the sustainable development of the concept of environmental criminal law,Environmental criminal law should play its "last line of defense" function,In the French Open settings, human activities restricted within ecological environment system can withstand,And pay attention to the strict implementation of environmental criminal law rather than the severe punishment.

The other three, the people's livelihood Protection by criminal law.

"Show new characteristics livelihood security issues in the criminal field,That is, a wide range of social harmfulness, the high degree of concern and regulation 'strict' inclination." Professor Sun Wanhuai Su Huiyu, East China University of politics and law thought,Public security especially the judicial control is related to the livelihood field shows a widening trend,On the one hand reflects the degree of concern on the judicial practice of public security problem in high,On the other hand,Also reflects the prevention and control of more emphasis on public safety in the judicial practice is the deterrent effect of punishment. This not only conforms to the trend of light punishment,Also violated the principle of legality,This criminal policy should be necessary to limit in the formulation of the application process,Strict implementation of the principle of legality. Beijing people's Procuratorate prosecutors Che Mingzhu thought,Construction of livelihood of criminal law,Is an excellent study and solve the livelihood problems of criminal law point of intersection,The realization of people's livelihood needs effective execution of criminal law from the criminal law, criminal law system consummation and innovation of theory of criminal law to ensure the three.

 

The criminal law crime of food safety

The people's court at2012-10-17 14:05:25 

  (Yuan Bin, Sun Daocui Criminal Law Institute of Beijing Normal University) 

2012Years9Month25DayTo27By day, Chinese Criminal Law Research Association, the Henan Provincial Higher People's court, the people's Procuratorate of Henan Province, Zhengzhou University School of law and the Henan University of Economics and Law law school undertakes2012The national criminal law academic year will be held in Zhengzhou City, Henan province. Participants in criminal law of food safety problems, has carried on the key discussion.

The problem of judicial application, a food safety crime

(a) is suitable for ordinary food safety crime judicial

Some critics of the food safety crime"Enough to cause a serious accident of food poisoning or other severe food borne disease"Connotation, think to judge"Enough to cause"The subjective understanding, should be based on the objective existence of the facts instead of human behavior as the basis for determining, the ex ante judgment and post judgment organic combination"Look ahead into the future and back into the past"Judgment method, and the scientific rules as the standard; at the same time, should also pay attention to production, sales do not meet safety standards of food behavior attributes, implementation levels, and may lead to the behavior of the real harm results occur is the possibility.

Some scholars discussed the differences between a standard of food and medicine, think at the specification level, whether"For therapeutic purposes"Is the only standard to distinguish between food and medicine. Also have argued, there are food safety crime on the same nature of the judicial practice in our country, the charges applicable to not unified"Pocket crime"Method to determine the charges; food regulatory malfeasance charges apply less defects. At the same time, the food safety crime areas prone to public opinion or social effect of kidnapping law, leading to the judicial professionalism and independence of loss, there is a flat anger and release method especially for the interpretation of the law, and convicted of felony cases. There are theorists believe, only super standard of harmful bacteria and other contaminants, can be enough to cause a serious accident of food poisoning or other food borne diseases. But for the infant's staple food should be the exception, edible to exclusively for infants especially as the staple food is not necessary for this limit, should use"Contains harmful bacteria or other pollutants exceed the standard"Requirement.

(two) the judicial qualitative drainage oil

Drainage oil is an important practical problem in current food safety administration of justice faces in practice. In this regard, it is argued that,"Drainage oil"Crime must be"Drainage oil"As"Edible oil"To production, sales, drainage oil comes from"Kitchen waste, waste oil, all kinds of meat and meat products processing waste"Three kinds of non food raw materials. About the drainage oil crime, in the production chain, the knowing that includes knowing oil source"Drainage oil"And knowing that oil production"Edible oil". In the sales process, act for"Edible oil"Whether to belong to"Drainage oil"There must be a subjective probability deliberately.

Also have argued, on"Drainage oil"Identification and judgment should not be to have proper identification report as the standard, and should be combined with the source material, machining process and machining process as evidence for comprehensive judgment.

(three) for food malfeasance crime

It is argued that the article 408th of the criminal law, one of the charges was established as the"Food supervision be forgetful of one's duties crime"And"The crime of breach of privilege of food supervision"A more reasonable, but also more in line with the basic requirements of determining accusation according to facts. In the judicial application, from"Food regulatory malfeasance"Close contact with the crime of breach of privilege, origin and be forgetful of one's duties crime, should not deny"Food regulatory malfeasance"Be forgetful of one's duties, the crime of breach of privilege and the crime of overlap of articles of law, which should be based on the special law priority principle. In the prosecution standard, the"Food regulatory malfeasance"Can refer to"The crime of breach of privilege"And"Be forgetful of one's duties crime"The accreditation standards of prosecution.

Also have argued, food regulatory malfeasance of supervisory negligence crime, the subjective expected objects include be forgetful of one's duties behavior, their food production operators behavior, a major food safety accidents or other serious consequences. For the supervisor's behavior requires specific foresight, and for the consequences of the final, as long as the foresight can be abstract, vague. And on that, starting from the principle of legality position, criminal law should explicitly stipulates that the state personnel responsible for the supervision of food safety. At the same time with bribery, the food safety regulatory malfeasance and corruption crimes.

Two, improve the food safety crime legislation

(a) the food safety crime concept of criminal law legislation

It is argued that, China food safety legislation has experienced a long process of development. Food safety legislation China recently has criminal intervention time is early potential, criminal involvement range is expanding and criminal involvement is strict tendency. Improved China food safety criminal legislation, attention should be paid to protection of the interests of the law and the protection of human rights, balance, from"Severe but not strict"To"Strict but not severe"At the same time, reflection on the legislation technology and focus on judicial interpretation, legislation mode to implement true subsidiary criminal law and penal code combination. Also have argued, China's food safety crime legislation in other countries and regions, the French are not close enough, can not fully meet the needs of our country to prevent and combat the food safety crime needs, including the scope of criminal law is too narrow, the subject of crime, object of crime in a single, subjective aspect is limited to intentional; penalty fine penalty provisions unreasonable, lack of maneuverability, no set of qualification penalty, application"Production, management"Instead of"Production, sales"Additionally, the food safety crime of negligent crime, improve the criminal fine, additional qualifications.

Also argued that the food safety crime, legislation in China should establish and implement people-oriented social philosophy, artificiality, expand food crime range of ideas and strengthen legislation. Specifically, the production, sales of unsafe food crime by the concrete dangerous offense to the abstract dangerous crime; constitutive elements to modify the production, selling poisonous, harmful food crime; illegal production, sale of unsafe food, poisonous and harmful food, provide action plan to help as a crime; adding the crime of possession; perfect food regulatory malfeasance.

(two) improve the food safety crime crime system

It is argued that the criminal protection of food safety in China, the existing criminal law protection lag, namely into type mode of constitution of crime is other crime pattern instead of missing for transportation, storage and other preparatory activities punishment defect. Based on the actual need of food crime and curb food criminal policy, regulation of the food chain in the criminal law of our country still has certain limitations, should be improved in the following three aspects: (1To strengthen cohesion) of criminal law and the law of food safety, actively carry out, the implementation of food safety law (2The crime of endangering food safety) to adjust the object of legislation, the provisions in the"The crime of endangering public safety"Chapter (3Food safety crime) to expand the range of behaviors: one is to expand the form of action, the illegal storage, holding toxic, harmful non food raw materials, food additives and food behavior into the scope of criminal law; the two is to expand the type of behavior, will produce, sell toxic non food raw materials and food additives behavior additional charges for special. In addition, should also be used for packaging materials, containers of food, for a range of food production and operation of tools, equipment into the food safety crime.

Also it is argued that the provisions of the relevant food safety crime, criminal law crime exists improper classification ownership system, the main object of food safety crime is the crime of endangering public safety, the production, sales do not meet the safety standards of food and the crime of producing, selling poisonous and harmful food, crime from the penal code Chapter third to chapter second; subjective scope, should be added to food safety crime types; at the same time, we should coordinate the relationship between criminal law and the law of food safety, food safety crime scope expansion. And on that, from the basic theory of criminal law and judicial practice point of view, will help food safety behavior of the crime of be of great advantage, meet the lenient and severe criminal policy is the basic spirit of criminal law, be urgent demand of. In actual operation, the production, selling poisonous and harmful food crimes, for example, can according to assist the organization prostitution crime patterns, one paragraph is added in article 144th of the criminal law, the provisions to assist the production, selling poisonous, harmful food sin.

(three) the food safety crime punishment perfect

It is argued that, on the food safety crime in Chinese criminal law also has some shortcomings, mainly for the fine penalty is unreasonable, the amount of the fine penalty is uncertain, no distinction between natural person and unit crime; lack of qualifications punishment. Therefore, China should adjust the amount of fine penalty and scope, the food safety crime into the qualifications punishment, and the addition of criminal law system against the defects of food recall system. Also have argued, the abolition of the death penalty is the development trend of the criminal law. The production, selling poisonous and harmful food, crime death penalty is not in accordance with the values of modern society, it is against the principle of suiting punishment, but not conducive to realizing the purpose of penalty, we should cancel the food safety crime death penalty.

   (the author unit: Criminal Law Institute of Beijing Normal University)