Restrain the legislative or judicial authority restriction

---- the principle of legally prescribed punishment power control function

Peng Bin of Southwest University of Political Science and Law

[Abstract]One of the statutory principle of crime and penalty function isTo restrict the judicial power and not restrain the legislative, the problem from the perspective of theory and empirical analysis

Key word.The legal principle of crime and punishment   The legislative power    Jurisdiction

A problem tracking

Negative crime punishment legal principle from the authoritarian era crimes centered system, to take the government's power to limit in a certain range. Because a man if you have uncontrolled power will lead to the tyranny and corruption, and the rule of law to rely on established in the system of separation of the three powers, but also the legislative, judicial and administrative separation, can only be in the structure is designed to prevent from the weakness of human nature, so as to maximize the protection of the citizen's rights. The principle of legality is in this kind of power restriction to the way, right for the purpose of background and rich. However, speaking of the criminal law, the state has the right of criminal legislation on the entity, but also procedural criminal jurisdiction. There are different understanding of the principle of legality restrict what "authority".

The two definition

YesScholars think that:"The doctrine of a legally prescribed primary mission is the restriction of legislative power".And, as demonstrated in this argument mentioned in:The crime punishment legal principle of legislative control idea is confirmed in 1789 France's "Declaration of human rights", the provisions of Article 4 Xuan Yandi:"Freedom is the right to do everything which does not harm to others". The provisions of article fifth:"Nothing that is not forbidden by law may be hindered, and no one may be forced to do anything not provided for by law."The provisions of article eighth:"The law should only be prescribed really need and apparently not less punishment, and unless the has been developed and published in the crime before it be implemented outside the law, no one may be punished."¹

This paperThat the legislative provisions as argument"The doctrine of a legally prescribed primary mission is the restriction of legislative power"This view does not have much persuasion. Specifically, from within these regulations or outside the meaning we can see that the principle of legality is bound to be able to restrain the legislative. From the meaning of the word look,"Control"Is a reflection of a subject to the object to be able to exert some influence, the formation of check or constraint. But I can't see the legal principle of crime and punishment by why will limit or restrict the criminal legislation.

From the French "Declaration of human rights," the provisions of article eighth in the first half of:"The law should only be prescribed really need and apparently not less punishment"Obviously, how the legal provisions, the provisions prescribed punishment and why, what kind of punishment, the fundamental cause is not guilty of criminal law principle exists or not, but in the social life, social order, social interests of reality, is restricted by social reality. From the second half of part of the description:"Unless the according to the formulated and released in crime and in accordance with the law before the implementation of the law, no one may be punished".Obviously, this is a restriction of principle of legality in the application of the law, but not the crime of statutory restriction principle in the legislation.

Some scholars believe that the principle of legality is a restrictive legislation function. I think the main reason is that they think:"The legislative power in fact also have the possibility of evil, and legislation in some cases right abuse of judicial power for evil than more terror,But people can not ask the legislature not legislation, because that will cut off the legal order of the important (but not the only) source."2This worry is not without reason, however, we believe that legislation is evil, is not simply that a principle of legality issues, but more important is the rationality of a legislation. The final standard of criminal legislation is the rationality of the constitutionality of criminal legislation and the legislative power. Exactly is a constitutional question. What is constitutional? Constitutionalism is a"With the constitution as the premise, as the core of democratic politics, rule of law as the foundation, in order to protect the human rights as a political process purpose.3Only under the theoretical level of the principle of legality of the spirit of human rights, the relationship between democracy and legislation principles closely. In this regard, as the scholars said:"Democracy and respect human rights as the basis for the legal principle of crime and punishment theory, request the appropriate criminal penalties should not be banned, punishment, namely the reasonable requirements of the scope of criminal punishment; principle of legality content now expanded, requires that criminal law content, as appropriate, do not meet this requirement is a violation of the constitution of the criminal law, so it is invalid".4Therefore, I think, of the principle of legality and criminal legislation is the relationship between constitutional theory under the. Are subject to constitutional constraints. Basic requirements only by constitutional restriction to the criminal legislation and legislative authority in the criminal legislation in line with the principle of legality. Otherwise, the legal principle of crime and punishment will be along withRestrain the legislative and judicial power controlFunction, finally into self contradictory dilemma in theory and practice.

As scholars said:"The core proposition of the legal principle of crime and punishment is to the rule of law of judicial power, its basic function, but it is against the weakness of human nature--For the evil power tools. The law here as a means of social control, but in the process of human society is a kind of anti natural selection. Here"Law"Refers to the legislation"Expressly"The method. People worry about the judicial power for evil, that restrict judicial power, has deeper roots; on"Don't trust a judge"Or"The judge authoritarian fear"(Note: the European countries to the reactionary role cherish an undying, Judge Stratum in the bourgeois revolution in its unique judicial tradition, based on the beginning with suspicion at the judge, so these countries choose the absolute (formalism) legality is not difficult to understand.)".5

Indeed, in the legislationAny more will not be worth the punishment or reasonable act as crime, this is undoubtedly a violation of civil freedom, rights, obviously the spiritual essence of the principle of legality and contrary. How the law "expressly" of course about the criminal legislative activities, but it is just the purpose of criminal law in a preset a subjective theory of static theory."Expressly"The method only pointed out that the violation of criminal law is a crime, as lawmakers is a behavior to recognize for the crime, the concept of crime in this form is unable to answer; the realization of the purpose of criminal law logically must first through the criminal justice practice. However,"The definition of the form of crime of criminal justice is".6The legal requirements in accordance with the "Regulations" legal conviction and sentencing. Therefore, the principle of legality is the first entered the people's vision through judicial practice. The crime punishment legal principle firstly refers to the legal punishment of law, namely, first ask the legally prescribed punishment for a specified crime, the restriction of judicial power.

Three empirical analysis

From an empirical standpoint, we still can draw the conclusion: the legal principle of crime and punishment did not restrict the legislative power function. Concrete analysis is as follows:

1 from theThe relationship between the principle of legality and the legislative point of view, the legal principle of crime and punishment as the basic principle of criminal law, which is recognized through the procedures and effectiveness of legislation. To become one of the basic principles of criminal law. But in some countries, not only in the criminal lawThe legal principle of crime and punishment, at the same time in the Constitution also stipulates the legal principle of crime and punishment. So.There is no legislative confirmation, the legal principle of crime and punishment in criminal law also can't exert its function, in this sense, the principle of legality is not restrictive legislation power.

The basic value of 2 criminal law is confirmed by legislation, and the static form included in criminal law, the criminal law theory of value is the intrinsic performance.And the realization of criminal law value is reflected in the judicial practice, follow the basic requirements of the principle of legality of the criminal law applied to the real life, the conviction according to law, in accordance with the sentencing, prevent the abuse of judicial power, to guarantee citizens' personal rights and freedom. The objective of legal practice. Visible, in the criminal law in the operation is the first one who.

3 as the scholars said"If the legal principle of crime and punishment is a creation of the criminal law and applicable in practice must be thoroughly implement the principle, the principle is not may also contain"Prohibition of analogy","Prohibition of retroactivity"Such formalism and criminal law"Rationality","Legitimacy"Substantive requirements. Therefore, the legal principle of crime and punishment in Chinese criminal law theory is possible only in a formalism principle, just a technical principle, could not include"Rationality","Legitimacy"Requirements of tangible value".7Obviously, here"Technical principle"Of course, mainly is the only criminal justice"Technical principle", rather than criminal legislation"Technical principle". The criminal legislation first pursuit is the content of the rationality and legitimacy. Criminal justice"Technical principle"The formalism asked how can restrict the criminal legislation"Rationality","Legitimacy"Requirements of tangible value?

4At the emergence and development of law is closely related with the country and the national power, therefore, the law always obey to a class or a certain social reality, in order to maintain a social interests and social order. For the criminal law, social harmfulness is a serious threat to some kind of social interests and social order is the theory of crime. Therefore, criminal law is restricted by the will of the state and state power in form, is restricted by social reality in the content of the.

For example, to increase the number of crimes in the new criminal law, the"The crime of theft of VAT invoice"Before the promulgation of the new criminal law there is debate. The crime of the behavior in criminal law, it is because of these acts of damage to the country's economic interests and social interests.Therefore, the criminal legislation and legislative power is restricted by the social development of the reality of the situation.

5 for example.Urge the crime punishment legal principle theory of Europe at that time Beccaria had been the most reactionary rulers such as the Russian Tsar Catherine II, king of Prussia, Feidelie, Emperor Joseph S of Austria welcome; usurpation of the French Revolution, the restoration of the monarchy. After Napoleon and the fascist period in Italy, Spain can stately the criminal law principle of legality in their develop.

This is why? We think, it is a concrete manifestation of the principle of legality form rational characteristics.If the legal principle of crime and punishment can restrict the legislative power, feudal monarchyThe fascist rulers will be the legal principle of crime and punishment in the criminal code of men? On the contrary, they used the principle of legality, through legislation, so that they were political and class oppression by the ruling class to the legal gained legitimacy nominally.

Four conclusion

The characteristics of legislative principles and the principle of legality of their inherent inevitable conflict. The legislation expectations, as stated in the thinker: in order to make"Humans don't like sentinels that eyes constantly go around, but can often make them to be light of heart from care to look up at the starry sky and a lush vegetation, looked really (Dasein) and is the inevitable and good, uninterrupted self preservation screams for help at least some quiet time, in order to make conscience whisper it can hear people".8However, often backfire, as long as in the development of society, the legislation will not close place, will always lag behind the reality of the real situation, and the requirements of the principle of legality forever distance. Therefore can never eliminate people thus germinal questioned on the statutory. The principle of legality is based on"The law clearly stipulates that" The basis, therefore, the crime of setting criminal legislation must be careful, otherwise, the legislative myth derived from the legislative power, which is inevitable. However, this contradiction is not endowed with the legal principle of crime and punishment restricts the power function, also should not to deny or abandon the principle of legality of extreme, but by as much as possible so that the legislative idea, legislative content to eliminate polarization rationalization, scientific methods of legislation, the legislative process of democratization, etc. factors synthetically consider, so that the people on the legal principle of crime and punishment"Method"The correctness of the doubts remain within reasonable limits.

Therefore, criminal legislation and the legislative power is a constitutional question, criminal legislation and legislative power should meet the constitutional requirement, restricted by the Constitution in form, under realistic conditions and in substanceThe restriction of social development objective law.The constitutionality of criminal law is actually the legitimacy of criminal law. The constitutionality of criminal legislation level is the biggest factor which affects the function of the principle of legally prescribed punishment, from this point of view, the legal principle of crime and punishment has really made a justification requirements of criminal legislation or constitutional requirements. Mr. Chen Xingliang also think"The crime punishment legal principle embodies the constitution to the criminal law, which is the constitutional basis of criminal law".9However, this does not mean that the principle of legality has the function of power control of criminal legislation.

 
[Notes]

1 Chen Xingliang: "the fate of contemporary" legal, "law" in 1996 second

2 Zhou Guangquan: "new Express" the problem of criminal law. China legal publishing house, 1999 November edition, page 260th

3 Li Long: "the basic theory of constitution", Wuhan University press, 1999 edition, page 144th

4 Zhang Mingkai: "basic concepts of" criminal law, Chinese procuratorial press, 1995 first edition, 115th, 106, 107 pages.

5 Zhou Guangquan: "new Express" the problem of criminal law. China legal publishing house, 1999 November edition, page 260th

6 Bayashi Yamada: "criminal law", the three people's principles press, 1986 edition, page sixty-second

7 Southwest University of Political Science and Law.Chen Zhonglin "technical or value:And the realization of the legal principle of crime and punishment value (on) the origin of the principle of legality ".

8 See Ladd Bruch (DE) "Introduction to law", M Health et al, 11 pages, Chinese encyclopedia press, 1997

9  Chen Xingliang.2001Years12Month17DayA mock court, Peking University Law Building: "The constitutional basis of criminal law "