On the rule of law in the "criminal law" principle

Abstract

Based on the present situation of legislation and justice, combined with the theory of law study, the "criminal law" as a matter of principle raised. The process of administering a country by law in the implementation of the idea, in the use of legal adjustment, the solution of a class of social problems, or the norms of social behavior of a certain aspect, should first consider the civil law and administrative law and other non criminal, finally consider the criminal law. The "criminal law" principle concept and meaning, "criminal law" in legislation, judicial principle of "criminal law" principles and other issues were discussed and analyzed, put forward the principle of "criminal law" into the constitution recommendations.

Key word

"Criminal law" principle  The modesty of the criminal law  The legislation of "criminal law" principle The judicial aspects of the "criminal law" principle

"Criminal law" principle, we are starting from the years of judicial practice experience, combined with the study and research of legal theory, after repeated thinking, put forward. In 2008, we have to "rule of law" in the criminal law "principle" as the topic, published an article in the "China Science Forum" on the twelfth phase, this idea also had in Comrade Wu Yuping's work "the crime of huge unidentified property and property from the perspective of anti-corruption reporting method" have been briefly in this paper.1Whether this idea was established, whether it is feasible, not only need elaboration theory, more need to practice test. In three years, after more than ten amendments, supplements, this article has made more than 5000 words had increased to ten thousand more than 3000 words, now we take the main argument of these ideas submitted to the third session of Chinese law forum, to communicate, to learn from the experts, scholars.

With the definition of a "criminal law", for the understanding of the principle of

"Criminal law" principle is a new formulation, need to give clear and defined. The author from the following several aspects to illustrate the concept of understanding.

(a), "criminal law" principle concept

1, "criminal law" is the principle that, we carry out the strategy of governing the country according to the law, in the use of adjustment, the solution of a class of social problems, or the norms of social behavior of a certain aspect, should first consider the civil law and administrative law and other non criminal, finally consider the criminal law.

2, "criminal law" as a principle, that is a fixed pattern of thinking, but also a basis of behavior; that is a question of principle, is also a solution to the problem.

3, "criminal law" principle not to belittle the criminal law, but more important criminal law, the criminal law as an important means of the rule by law, on the back to use. The criminal law is the law for the content of a deprivation of life, liberty, property rights, qualification, is the most severe legal function. From the legal perspective, the legal norms of criminal law as a weapon, the nuclear weapon. Nuclear weapons are the most powerful weapon, but also the most destructive weapon, therefore, modern people although about nuclear weapons deterrent, but dare not use nuclear weapons. On the basis of the "criminal law" principle, in the process of building a socialist legal system, we should pay more attention to the role of the deterrent effect and security of criminal law.

4, we are in the process of building a harmonious society, should more consider the criminal law for non criminal legal protection function. In the legal system of our country, many non criminal penalties for violations, the last often have "acts constitute a crime shall be investigated for criminal responsibility according to law.",[1]For this system, we can do it: in the legal system of our country, the relationship between criminal law and other laws, criminal law has a role for other legal protection and "deterrence", for the criminal law more about its security role should be, should be the "last resort use", but can not solve the problem in the civil and commercial law, administrative law and other non criminal legal norms or insufficient to completely solve the problem, can consider to use criminal law.

5, the rule of law in the "criminal law" principle, according to the scope, can be divided into two aspects: one is the legislation of "criminal law" principle, the other one is the judicial aspects of the "criminal law" principle. In the specific application, also can be divided into civil proceedings in the "criminal law" principle, anti-corruption in the "criminal law" principle, anti commercial bribery in the "criminal law" principle, the administrative proceedings in the "criminal law" principle.

6, Professor Jiang Ping recently argued in civil litigation "ancestors to punishment".②We begin to consider this problem in 2007 also wrote on "the ancestors to punishment" principle of articles. Later it was, "criminal law" principle involved is not only the relationship between criminal law and civil law, also includes the relationship between criminal law and other laws; "criminal law" principle is not only applied in judicature, can also be used in legislation. If we take the "mentioned the criminal law" as a rule of law, to guide the legislation and judicial practice, may be more comprehensive, the effect will be better.

(two), "criminal law" and the principle of restraining criminal law principle

1The restraining criminal law, a

On the criminal law theory, the criminal law does not expressly,DomesticOutsideScholarGiven this formulation had many different definitions. Scholars generally believe that this formulation of restraining criminal law is the first by the JapaneseScholarHirano Ryuichimeti out, he said: "even if the violation or threatened the life of others, nor must direct the use of criminal law, if possible, by other means of social rule is the ideal. Can say, the only other social regime is not sufficient, or other social rule means (such as lynching) is too strong, is replaced by the penalty when necessary, can use the criminal law. This is called the criminal supplementary or modesty."1

Qu XuewuProfessor, modesty principle, called the principle of necessity. Refers to the existence of the legislature is only in the specification is essential -- no method can substitute other appropriate penalties conditions, can be a violation of law order behavior set into crime. Generally speaking, the following conditions did not set the necessary criminal legislation: first, no effect of punishment. That is to say, if some kind of behavior setting for crime, still can not reach the effect of preventing and controlling the crime, the legislation is not feasible. Second, he can replace. If a criminal law prohibited content, can be used in civil, commercial, economic or other administrative means to effectively control and prevention, the criminal legislation is not necessary.②

Professor Chen Xingliang in his book "the value of the criminal law" in the construction of the criminal law has made the concept of such a definition: "the modesty of the criminal law, refers to the legislator should strive to minimize the expenditure -- and even less with no penalty (while the other alternative penalty measures), to obtain the maximum social benefit -- effectively crime prevention and control." He pointed out that, the restraining criminal law has three aspects: tight 1, criminal law. That the criminal in the wholeLawSystem which occupies more and more proportion in low. Supplement 2, criminal law. Finally use the means that criminal law. Economy of 3, criminal law. This is from the rational economic perspective of the restraining criminal law principle of internal evaluation. The so-called economic, in short, the penalty shall not exceed the cost of damage to the interests of the crime. For example, with the excessive abuse of punishment of minor crimes, not the economy is a great waste of judicial resources performance.③

Professor Zhang Mingkai pointed out, the restraining criminal law refers to the criminal law should be based on some rules of control punishment scope and the degree of punishment, that are applicable to otherLawSufficient to inhibit some illegal behavior, to protect the legitimate rights and interests, not to its provisions for criminal sanctions; those who apply for the lighter is sufficient to inhibit some criminal acts, to protect the legitimate rights and interests, don't set the heavier sanctions method. Since he is not difficult to see the definition of the modesty of the criminal law, criminal law professor Zhang Mingkai alleged, mainly includes two aspects, one is the non crime, two is the light punishment.④

By the concept of the criminal law can be seen, the modesty of the criminal law is mainly reflected in two aspects: one is according to certain rules to control the scope of punishment; the two is to have been identified as a crime, a crime if the inhibition by way of criminal responsibility is light enough, do not use the criminal responsibility heavier. The content of these two specific performance for the non crime, punishment and light punishment requirements in the actual operation of the criminal law.1

2, "criminal law" principle and the principle of restraining criminal law relationship

On the problem of the relationship between "principle in criminal law" principle and the modesty of criminal law, we try to understand by comparing the similarities and differences of the two.

In many states the restraining criminal law principle, have one thing in common, that can solve a problem by non criminal law, not the use of criminal law. For this argument, Mr. Qu Xuewu called the criminal legislation "unnecessary" and "not feasible"; Chen Xingliang teacher called "the last use of criminal law means". We through the review and thoughts since reform and opening up the legislation and judicial practice, combined with the legal theory of learning, the "criminal law finally use" down to "criminal law" principle. "Criminal law" principle and the restraining criminal law by comparison, two of them are similar, there are differences.

Similarities:

Two in the criminal code are not specified. So far, about restraining criminal law principle discussed for theoretical research, at the legislative level has not been clear; "criminal law" principle is a characteristic China society in the new academic point of view based on.

All two claim, in the legislation and the judicial activities, for the criminal law should give as much as possible to save, compression and control.

The difference:

One is the starting point is different, the restraining criminal law principle is applicable principle of criminal law, criminal law mainly from the construction of its own, applicable to the legislative and judicial activities of criminal law, the principle of "criminal law" attempts to implement the strategy of ruling the country by law of the overall situation, to carry out the strategy of rule of law in the whole process of restraining criminal law principle; is a guiding principle of criminal legislation and criminal justice, and "criminal law" principle is a rule of law thinking and behavior rules.

The two is to consider the different content, the restraining criminal law principle, the main consideration is the construction and application of the criminal law itself; "criminal law" principle not only consider the construction and application of the criminal law, but also consider the socialist legal system China characteristics, status and function of criminal law issues, namely between criminal law and other legal system relationship issues.

Three is the suitable scope is different, "criminal law" principle not only has the guiding significance for the criminal law's legislation and judicial activities, but also has guiding significance for the legislation law, procedural law, civil law, commercial law and other non criminal legislation and judicial activity. In the legislative and judicial practice, as a kind of mode of thinking and behavior rules, "criminal law" principle with the restraining criminal law principle irreplaceable role. The restraining criminal law principle is a principle of criminal law, "criminal law" principle is a principle of the constitution.

Two, the "criminal law" the significance of the principle of

We put the "criminal law" as a principle, because it is compared with the restraining criminal law principle, have a more general theory and practical significance, with the restraining criminal law principle irreplaceable role. In the process of implementing the strategy of ruling the country by law "after the implementation of the criminal law," the principle of significance, mainly has following several aspects:

(a) to implement the "criminal law" principle, in line with the actual situation of our country's social development.

1, our republic has grown for sixty years, large-scale class struggle has gradually away from our real life, the people of the whole country is entering a well-off society. "In times of heavy penalties, just light punishment of fu". The overall goal of building the rule of law and harmonious society requires us to adjust, regulate social relations, to the maximum extent possible to use less criminal law. In the "light punishment Fu", we have done some, such as the abolition of crime of counter revolution, cancel play the market crime, the criminal policy of combining punishment with leniency, strict restrictions on the death penalty, from peasant agriculture tax, to raise personal income tax standard, etc.. If we can further the "criminal law" as a rule of law principles set down, then, will have a more lasting significance for building a socialist harmonious society.

2, the world of legal developmentHistoryFollow this rule: criminal law gradually from the adjustment of social relations Everything is contained therein. to shrink into a prominent the special adjustment means the legal department, and then to the evolution of security law. From which we can see, with another kind of phenomenon opposite to the law society where expansion, that is the tightening of criminal law, the criminal law is gradually decreased in the whole legal system of specific gravity. Method lost more and more criminal law backed by violence of mandatory, the penalty is just a lot of law enforcement as a means of parallel, limited to handle most deterrent in social relations, without dew, but the penalty is only as a last resort to determine the punishment of certain acts.1

China's social development has reached a "criminal law gradually from the adjustment of social relations Everything is contained therein. to shrink into a prominent the special adjustment means the legal department" such a stage? We think the answer is in the affirmative. Conforming to the social development trend, in order to strengthen the consciousness of knowledge and practice, it is necessary to "criminal law" as a principle of the constitution.

3, with the development of China's social development, now for the purpose of penalty is defined by "revenge" to "prevention" point of view, people in the view of criminal law has become more rational, the criminal law making and implementation must have the rationality and legitimacy. Therefore, the real development needs the theory of rational criminal law based on the extreme expansion, by penalty "revenge" understanding of penalty power must be restricted. In recognizing the purpose of penalty is that: only stop criminals re against citizens, and warn others not to recommit the same error, the penalty is defined in the framework of rational knowledge. Therefore, the development direction of criminal law must be more humility.1

For the purpose of penalty, by paying attention to the "revenge", "punishment" to focus on "prevention", it is the inevitable trend of social development in our country. "Criminal law" principle is a response to this trend.

4, to reverse China's social formation of long-term "severe punishment" and "criminal law instrumentalism" thought, it is necessary to put forward the principle of "criminal law".

A "severe punishment" and "criminal law instrumentalism", Professor Chen Xingliang has been discussed deeply in his book: "in Chinese traditional criminal law culture, nationalism color is extremely strong, this is the inevitable result of social Chinese traditional concept of national power is developed, which makes the traditional criminal law culture to the interests of the state and the stability of the social order as the highest value, ideology of criminal law and the formation of heavy penalty." The social origin of criminal law instrumentalism, analyses deeply professor Chen Xingliang: "China is a country with a long tradition of feudal autocracy country, criminal law instrumentalism ingrained. The criminal law as a crime suppression for the content of the criminal law instrumentalism is popular, social structure related mainly with the Chinese yuan. In the social structure of the yuan, political country occupy a monopoly position, carries on the comprehensive control of social, personal freedom and rights of citizens has long been suppressed and suppression. In 1949, after the founding of new Chinese, there has been a fundamental change in the social system of our country, but in the planned economy system, still maintained the social structure element. In this case, the criminal law and politics to become attached to, become the dictatorship of the class struggle, to strengthen its social security function; the criminal law safeguard function of human rights has been neglected or even ignored. Along with the economic system reform and development, the introduction of market mechanism, great changes have taken place in our society. In this case a transformation of a society to the social and political state and civil society two yuan of discrete. Therefore, the criminal law is not only legal instrument of national crackdown on crime, legal weapon is also the guarantee of human rights."②

The reality of social life so that we deeply appreciate, "severe punishment" and "criminal law instrumentalism" thought in the social development history in China can be said to be long, but also can be said to be ingrained. To adapt to the new situation of social development, make to the decision-making level, down to the ordinary people to reverse the formation of long-term "severe punishment" and "criminal law instrumentalism" thought, only through the modesty principle that criminal law, is clearly not enough to solve the problem.

(two) to implement the "criminal law" principle, in accordance with Scientific Outlook on Development "people-oriented" ideology.

The core of the 1, Scientific Outlook on Development thought is "people-oriented", of all things in the world, people are the most precious. The fundamental rule is the use and protection of human management. To minimize the negative factors of social development, the society more than a prison staff, the more negative effects. To strengthen the protection of human, to minimize the criminal punishment.

2, teacher Yang Xiejiao think, the current criminal law, only is equipped with the death penalty charges up to as many as 64. So, at present Chinese criminal not modesty, most people still is the radical for the punishment of the crimes of attitude, even so respected penalty. Practice tells us, rely on penalty does very little for our country the crime control, our country's criminalLaws and regulationsFan Bixu established the base of rational judgment to the realistic situation.1Professor Bai Jianjun statistical result is: "a total of 68 suspended the death penalty charges".②

 3, the criminal law is the most severe method adjusting social relations, it is a deprivation of life, liberty, property, rights and interests of great evil qualification for the content of the pests.③Therefore, the criminal law (or penalty) as a kind of by the force of the state to guarantee the implementation of evil, if abuse, its harmful consequences as the general public a weak side which cannot compete with, will cause the most overwhelming strangle justice. For the punishment itself has the malignant, Hart discusses the exceeds the limits of necessity and will result in consequences: "if people knew that in order to meet the needs of social security, the innocent are likely to be arrested or suffer pain, there are generally wary and terrorist state may be relative to the society, caused by these methodsSafetyAnd the interests of society, a more unhappy things."④Criminal law itself negative requirements we must be used with caution, in implementing the strategy of ruling the country by law in the process of positive and negative effect, balance of criminal law, the "criminal law" principle.

4, we have "taking class struggle as the key link", that "the class struggle, a grasp on the soul", it is needed to establish the beginning of our republic. Now, large-scale class struggle has become the past, ways and means to adjust social relations also need to make corresponding adjustments, we formed in the class struggle under the conditions of the thinking method and thinking also need to make corresponding conversion. In determining the effect of criminal law and legal status, need to inject the scientific rationality and humanistic care more, that is from the "people-oriented" guiding ideology of "criminal law" principle.

(three) to implement the "criminal law" principle, in accordance with the general principle of anti-corruption in china.

"To administer thoroughly, integrated management, punitive and preventive measures, focusing on prevention policy, push forward the construction of punishing and preventing corruption, in resolutely punishing corruption at the same time, pay more attention to effect a permanent cure, pay more attention to the prevention of, pay more attention to the system construction, expanding from the source control corruption work area."1To combat, dominated by the curb, to pay attention to the anti-corruption thought prevention requirements in our anti-corruption work, strengthening the construction of non criminal legal system. "Yesterday's guest, now a prisoner" suddenly found out, is not a sound management system performance. To prevent "oversight", only from the system to strengthen the supervision and management of civil servants. Only the supervision and management of the ruling party is not enough, should also create conditions, make the whole society to supervise. Check erroneous ideas at the outset, try to make the corruption was discovered, first stop, promptly nipped in the bud. Don't wait until problems pile again when the reckoning, at this time, a civil servant has been destroyed, it is difficult to save.

Civil servants is an important part of social resources, social substantial input for training of civil servants, senior civil servants is the precious wealth of the society, we need to cherish and protect. To strengthen the education of public servants, strengthen the system construction, strengthen the protection of the civil servants from the system, so that the public servants do not want to corrupt, not greedy, not greedy. In the punishment of corruption on the road, to build a line of defense, to reduce the criminal accountability of civil servants. In order to strengthen the protection and management of the civil service, we can appropriately increase the number of non criminal system, such as the property declaration, regular review, resignation, impeachment, recall and so on, the criminal investigation as the last line of defense of anti-corruption.

Review the course of anti-corruption in China, we have put the criminal law as the main legal weapons to anti-corruption. Practice has proved, in criminal law based anti-corruption social effect is not ideal, so we seek to resolve the problem of corruption by criminal law outside the legal and institutional. With the gradual improvement of anti-corruption policy, we should gradually end of anti-corruption to the layout of the criminal law, and turn to a non criminal law, criminal law as supplement to anti-corruption?

(four) to implement the "criminal law" principle, in line with China's criminal law by the "dictatorship" criminal law "to the development trend of criminal law"

On the criminal law theory, the criminal law of our country does not expressly,DomesticOutsideScholarGiven this formulation had many different definitions. In recent years, many scholars based on the study and understanding of the modesty of the criminal law, to reflect on the previous "strike hard policy" and "severe punishment", proposes decriminalization and depenalization advocate, promote social reforms for crime and criminals attitude, while also saving the national penalty resources, make modern societies deal with the crime of reaction in the diverse at the same time, more and more humane, civilized, the choice of economic.

The consensus to promote development of criminal law "criminal law by the dictatorship" to "criminal law" has many scholars. We think, since the "dictatorship by the criminal law" to the "criminal law" has become an inevitable trend of development, since the restraining criminal law principle in the criminal law does not clearly defined, so we should according to the China proposed has Chinese characteristic "criminal law" principle?

Three, the legislation of "criminal law" principle

The legislation of "criminal law" is the principle that we, in a social phenomenon (problem) is the legislative activities, should be considered first to solve the problem by non criminal law, only when the law can not be non criminal to solve this problems to solve this problem, only to consider to solve through the criminal law design.

We take the legislation of the crime of huge unidentified property as an example, to illustrate the truth.

During 1, 1987 to 1988, the legislature established the crime of huge unidentified property in the discussion, also had to take into account the property declaration law, comrade Wang Hanbin in the draft statement also mentioned the property declaration law: "should explain, some provisions of the state civil servants shall declare the property income, the national staff whether to establish the system of property declaration the problem, need to be studied and solved in other relevant laws." At the time, not just in front of the property declaration law on the crime of huge unidentified property to be considered.1

The problem of unknown source of huge property national staff, is the official illegal money generated. In solving the legislation through the design of national staff illegal money problems, can have two different ways: one is solved by setting up and perfecting the non criminal law; another through to solve the establishment and perfection of the criminal law. To solve the problem of huge amount of property with unidentified sources through the criminal law, it is the social phenomenon of crime, to curb the criminal punishment. From the beginning of 1988, we set up the crime of huge unidentified property, the crime, the punishment for more than twenty years. Practice has proved, the establishment of the crime of huge unidentified property social effect is not ideal. For more than 20 years, more and more cases of this case, the growing amount of personnel rank, more and more high, the crime phenomenon is more and more serious. The social effect is the main standard to measure the effectiveness of inspection, legislation. So, even if we put the crime of huge unidentified property doctrinal disputes aside whether, to its social effect, also cannot say that this is a successful legislative design.

2, if so, we had to solve the problem of huge amount of property with unidentified sources through the legislative design of non criminal law, will be how? To solve the official illegal money problems in non criminal laws, it should strengthen the regulation and supervision of the civil servants property act, that is the establishment of the public property law. If in 1988 the legislative design, from strengthening anti-corruption system construction to consider the problem, to solve the problem of official property of unknown sources, first of all to regulate, guide through the establishment of the property declaration law, rather than the establishment of the crime of huge unidentified property to strike, punishment, then, problems of huge amount of property of unknown origin of civil servants certainly not like today so serious. Moreover, when the public servants have hidden property is not so serious and prominent, the implementation of social resistance property declaration law never like today so big.

3, 2001, Mu Suixin in Shenyang, Ma Xiangdong corruption cases, find out the Ma Xiangdong huge unidentified property 10680000 yuan. Ma Xiangdong went to the casino in Macao, less than a year lost $500000, and of course Ma Xiangdong is wanted to win. If we have a relatively complete civil servants property declaration system, let Ma Xiangdong at least once a year to Congress or the National People's Congress, to the relevant department for their personal property, then, Ma Xiangdong would not have amassed about ten million sources of unidentified property. If Ma Xiangdong gamble to win money, will fear this money back to "digest", how to organize, to the community to report their personal property. Unfortunately, we do not have the legal system in this regard, not the behavior of the property to the Ma Xiangdong's norms and supervision and regular, so to his one-time exposure concentration, put him to death. In the current anti-corruption practice, similar to Ma Xiangdong's case should not in the minority.

4, in the twenty-two years of the establishment of the crime of huge unidentified property after today, look at the legislation "criminal law" principle, may be more clear. At the time, everyone in the "crossing the river by feeling the stones", the legislative activity of our country is no exception. For the crime of corruption, is mainly to regulate the system, or from the penalty to punish, there is a thinking problem, also is the "criminal law" principle.

5, of course, legislation in this respect, we are not totally reject the criminal law, only "criminal law", but in consideration of the solution to a problem, not the first to use the criminal law, but first consider the non criminal law, the criminal law of the design at last. According to this thinking, in order to solve the problem of unknown source of huge property in civil servant, in legislative design, it should first focus on the non criminal law, the property law and other non criminal law to regulate the property behavior of civil servants, the criminal legislation on the final surface to be considered. For example, we declare the law in order to safeguard the implementation of the abolition of property, the crime of huge unidentified property at the same time, the establishment of refusing to declare property crime in the criminal law department, for those illegal money, corruption and refuses to perform the obligations of property declaration, by refusing to declare property crime to punish.

The design of such legislation, in a non criminal law prior to the criminal law, in the post, to non criminal law in criminal law, subsidiary, may be more logical, no provision for the crime of huge unidentified property, causing stultify oneself so much, bring so many black disease.

Four, the judicial aspects of the "criminal law" principle

The judicial aspects of the "criminal law" is the principle that, in the judicial practice, for the specific social contradictions, to the non criminal law to adjust, the standard and the solution, not the use of criminal law.

(a), in the management of commercial bribery special as an example, to illustrate our understanding of the problem.

1, 2004 in a case of Zhejiang province Wenzhou city makes us very suffer inspire. 2004 February to 2005 March, a brand of beer vendors selling beer to taste Jane hotel in Zhejiang province Wenzhou city to pay the restaurant "entrance fee" form, has two times to the hotel "entrance fee" of 58000 yuan. The administrative authorities for Industry and commerce to constitute commercial bribery by the parties, the punishment. If a party refuses to accept, bring an administrative lawsuit to the court. The court finally to beer party's behavior belonging to the business bribery is upheld, the administrative department for Industry and Commerce of the penalty decision.1

We use beer case as an example, to research, analysis of anti commercial bribery in the judicial practice of "criminal law".

2, from a legal point of view, the beer in the case of hotel and sell beer may infringe the following benefits: one is the other beer sellers of fair competition in the market interest; two is the consumer choice of beer consumers a variety of beer and requested a fair price advantage; three is the other hotel Fair competition in the market interest. These units and individuals can take the civil law as a means of relief, bring a lawsuit to the court, asked to stop the unfair competition claim compensation for the corresponding losses.

3, from the perspective of administrative law, beer in the case of hotel and beer salesman collection "entrance fee" in violation of the relevant provisions of the "Anti Unfair Competition Law", harm to the normal order of the market, has the property of administrative law, should be subject to administrative punishment.

4, from the criminal law point of view, the beer in the case of hotel and beer or between a collection "entrance fee" behavior belonging to the business bribery behavior. If the parties in the case of all belong to the private property, so it does not have the public nature of the crime of bribery, non business field, should be based on article 163rd of the criminal law on the crime of bribery of non national staff regulations and 164th of non national staff bribery provisions to deal with. If the parties in the case or a party belongs to the state-owned units, it should be according to the criminal law eighth chapters on civil servants (including the units) the crime of bribery, bribery to investigate.

5, the central in the deployment of governance of commercial bribery special work pointed out: "the management of commercial bribery is a complicated and arduous task, should not only focus on the time to carry out special treatment, but also from the overall and long-term interests of unswerving efforts, combined with rectify and regulate market order, and constructs the system of punishing and preventing corruption of unity, phase adaptation and political, economic, cultural and social construction, adhere to the idea of development and reform to solve the problem of commercial bribery, establish and improve the long-term mechanism. To administer thoroughly, integrated management, overall planning and deployment, the steady advance in an orderly manner, the exploration of effective preventive measures. Should be based on current, a special treatment, but also focus on long-term, to establish long-term mechanism of governance of commercial bribery, actively and steadily make depth".1

6, in the judicial practice of anti commercial bribery, in the legal application, we can follow the "BBK" train of thought, on the integrated management of commercial bribery.

The first step, since the commercial bribery as acts of unfair competition, then violated by acts of unfair competition in the market, on the basis of civil law and anti unfair competition law to the administrative organ report, or to judicial prosecution of commercial bribery, requesting the court to ban on commercial bribery, and the unfair competition act compensation for the corresponding losses. The benefits of doing so, can be in the market gradually form a good business order, and that order is maintained by the operator and mutual supervision, by administrative organs and judicial organs to the referee, the effect will be better.

The second step, for the commercial bribery in clear violation of administrative legal act, can be investigated and punished by the administrative department for Industry and commerce, fines, confiscation of illegal income, deadline for correction, rectification of administrative punishment.

The third step, for the commercial bribery crime, by the public security organs (involving non state staff) or procuratorial organs (relates to national staff) were investigated in accordance with the relevant provisions of the criminal law, shall be investigated for criminal suspects (including the criminal responsibility of unit).

If we in the judicial practice of commercial bribery governance, to "criminal law" as the principle, follows the ideas to solve the problem, then, will the good social effect, more durable.

7, from the current practice of anti commercial bribery, the popular view society pays more attention to criminal investigation of commercial bribery. The reasons for this situation: one is the "most people still is radical for punishing crimes attitude" (Yang Xiejiao language); the two is due to the market economy of China, business subject to use the law to safeguard their legitimate rights and interests of the legal consciousness is still relatively weak; three is due to administrative, judicial organs for commercial subject the rights protection channel is not smooth, guidance and support is not strong enough to. If we are to mobilize the whole society to control commercial bribery, it should first of all from the application of civil, commercial focus, make the most of commercial bribery in just happens, in the performance of relatively minor, can through civil, commercial law adjustment to solve; make a few commercial bribe behavior solved by administrative law specification; make the behavior of a handful of commercial bribery serious received criminal punishment. This is an ideal society situation.

(two), the criminal supplementary civil action in "criminal law" principle

1, in some criminal and civil cases, pay more attention to solve the civil part, for in this regard good attitude, to fulfill the civil liability for compensation in active criminal defendant appropriate a lighter or mitigated punishment, will also receive a good social effect.

2, the more successful experience is for the cases of traffic accident treatment. The crime of causing traffic casualties as negligent crime and the subjective malignant is relatively small, this kind of case in the process often focus on the civil compensation, to perform the civil compensation responsibility actively, compensation responsibility better crime, give appropriate lighter or mitigated in criminal investigation, so that it can receive the good social effect.

(three), "the criminalization of civil disputes" problem

Since 1, the reform and opening up, the central has give repeated orders and injunctions, no judicial organs use criminal means to interfere with economic disputes, but because of the interest driven and local protectionism in all the cases of economic disputes, as a criminal case to deal with, the use of criminal means to solve the civil case was heard.

2, to use criminal means to resolve civil cases in this bad tendency, recently some experts, scholars put forward the "criminalization of civil disputes" problem. Professor Jiang Ping pointed out: "a very important principle of resolving civil disputes is, can use civil means to solve as far as possible in a civil way to solve", "these two cases can be solved in a civil way, also can be solved by criminal sanctions measures, if not master in this problem, it is not particularly conclusive or evidence, we rather use civil solution, instead of using the criminal law to solve."1Mr. Jiang Ping also proposed a "principle" here, namely "ancestors to punishment" principle. We think, if the "criminal law" as a principle, to guide the judicial practice, to solve the "criminalization of civil disputes" problem, may be the effect will be more direct, better.

3, "the criminalization of civil disputes" issue has reached "of" degree, has the profound social reason and foundation. In addition to the reasons in two aspects of benefits and local protectionism, there is a mindset problem. In the class struggle under the conditions, we have used to solve all the problems of society to "struggle", now want to change this kind of thinking, is more difficult than to change some guidelines and policies, not explicitly put forward the "criminal law" principle, not enough to reverse this situation. To solve the "criminalization of civil disputes" problem, not only to take appropriate regulatory measures in the judicial activities, but also in the ideological understanding to establish a principle, that is "criminal law" principle. We have put the "criminal law" as the principle of judicial activities in a guiding principle, to be specific in the judicial system, play the role of disposal from the work procedure and case decisions.

4, some scholars put forward the "non crime" and "punishment". "Non crime", refers to cancel certain offences, which exclude certain behavior should be the nature of punishment, the traditions of various minor crimes into general illegal acts in violation of the order. Its main purpose is to avoid excessive intervention of criminal law on the social life, make the criminal justice more effective in dealing with serious crime, the crime in the maintenance of a minimum limit must be public order within the. "Non penalization", refers to reduce the legal provisions of criminal penalties for certain crimes, or for certain offences or some criminals without penalty method of the traditional imprisonment penalty and non imprisonment penalty function method to reform criminals. Decriminalization and depenalization of retributive penalty made a fundamental challenge, changed people long entrenched the guilty must be punished the retribution idea, promote social reforms for crime and criminals attitude, while also saving the national penalty resources, so that the modern social against crime of reaction at diversification at the same time, more and more humane, civilized, the choice of economic.1"Non crime" and "punishment" is mainly for criminal legislation and criminal litigation, if we put this principle into the civil action, it is Jiang Ping teacher's "ancestors to punishment" principle.

5, the recent, a typical example is the university student Huang Jing buy computer case. In 2006 February, Huang Jing to buy a notebook computer Asus, after negotiations with the Asus fault constantly, had to Asus companies raised $5000000 "punitive" claims. In 2006 March, after the police intervention, to blackmail and impose exactions on crime of Huang Jing adopting criminal compulsory measures. In 2007 November, Beijing Haidian District people's Procuratorate in the grounds of insufficient evidence, make the decision not to initiate a prosecution on 2008 September, Huang Jing, make state compensation confirmation. Reflection of Huang Jing case, due to the use of criminal law, the body easily, the property Huang Jing people suffer a loss; serious waste of judicial resources of the state; the state will pay huge compensation; social impact is not good. In this case, Huang put in a claim for damages of $5000000 although some outrageous, but from a case of the essence, still belongs to the purchase and sale contract dispute, can completely by the judicial organ according to the contract dispute to hear. Easily start the criminal procedure, the consequences are disastrous.

(four), "to penalty and punishment, non transferring criminal cases".

1, the world everything has two sides, about the question of "criminal law" principle is no exception. In the current judicial practice, not only the existence of "criminalization of civil disputes" problem, there are also "to penalty and punishment, non transferring criminal cases". "To penalty and punishment" refers to the administrative law enforcement in administrative law enforcement activities, which has constituted a crime of criminal cases, not transferred to judicial organs, administrative punishment instead of criminal behavior.

2, in order to punish the "substitute fines for punishment" act, article 402nd of the criminal law of the crime of not handing over criminal case play favouritism and commit irregularities. In accordance with the provisions of article 402nd of the criminal law, constitute the crime of not handing over criminal case play favouritism and commit irregularities must be "play favouritism and commit irregularities" subjective intent, must be "serious behavior".1

3, "criminal law" principle, also applies to the administrative law enforcement activities: to administrative cases and administrative law enforcement organs discretion, should be made by the administrative law enforcement agencies within the scope of their respective functions are processed according to the law; the standard has constituted a crime of criminal cases, should be transferred to the judicial organ for between "; the transfer" and "can not transfer between" case, as far as possible according to administrative cases. The author thinks, emphasizing the "criminal law" principle, and can not become a "substitute fines for punishment".

In our implementation, the implementation of the strategy of rule by law, the process of constructing socialist harmonious society, and the use of law in the design, implementation of the "criminal law" principle, consistent with our current social life reality, conducive to social harmony and stability, conducive to social sustainable development, conducive to social long period of stability, have the formation and perfection of the socialist legal system to Chinese characteristics. In view of this, we think, should be "criminal law" principle as a basic principle of the rule of law into the constitution, but also should obtain the corresponding reflected in other legal departments.

 

 

Reference

[1] "PRC Criminal Law"

[2] "hold high the great banner of socialism with China characteristics for building a moderately prosperous society -- Chinese victory in the struggle in the Seventeenth National Congress of the Communist Party's speech", Hu Jintao, October 15, 2007

[3] "special work on governance commercial bribery views", do hair (2006) No. 9, general office of the CPC Central Committee, the general office of the State Council issued in February 8, 2006

The Secretary of the Standing Committee of the Sixth National People's Congress, [4] long, Wang Hanbin of chairman of committee of legal affairs in the twenty-third meeting of the "about the punishment of the crimes of smuggling and punishing the crime of corruption and bribery two supplementary provisions (Draft)" shows, in November 17, 1987

[5] Chen Xingliang: "philosophy of criminal law" (Revised Edition), China University of Political Science and Law press, 1997

[6] Chen Xingliang: "value" structure of criminal law, China University of Political Science and Law press, 2006

[7] Chen Xingliang editor: "comment" criminal law, volume twenty-first, Peking University press, 2007

[8] Zhang Mingkai: "criminal law" motto of, Law Press 1998 edition

[9] "the modern criminal law on" first volumes, publishing house of law in 2003 December, the criminal law science research center of Renmin University of China organized

[10] Wang Mingxing: "criminal law" the spirit of modesty, the people's Public Security University Press, 2005 Edition

[11] Li Jin, Kong QingDemocracyEditor: "ChineseLawHistory of thought ", Heilongjiang people's publishing house, 1983

[12] Zhang Wenxian: "LawThe principle -- a normative analysis ", Chinese Legal Publishing House2001Version

[13], the Supreme People's Procuratorate "about directly accepted by the people's procuratorates shall place the case on file for investigation case standard (Trial)", high hair words (1999) No. 2