Look at the criminal legislation from the provisions of the criminal lawThe paradox

(Beijing City, Kyoto firm Liu Bo[1])

   Since 1997, the criminal law promulgated in 12 years, the activities of criminal legislation in China frequently, lawmakers try to weave a tight criminal legislation, the criminal law has made the eight amendment, the first is to separate criminal law, seven are of the form of criminal law amendment. In terms of time interval and frequency, legislation is very positive, active state, in the legislative provisions are set to show prospective. Even so, the criminal legislation to achieve the original intention of the legislators? Whether the legislative language "rigorous, standardized, concise, clear, easy" requirements? The criminal legislation of our country exists errors and problems? In response to these questions, the author firstly analyze several specific provisions of criminal law.

    One, the provisions of the criminal law

   1, article seventeenth of the criminal law, 56 still use the "poison"

   The December 29, 2001 "criminal law amendment three" first, second of the criminal law of the original 114th, 115th in the "poison" is amended as "poisonous, radioactive, infectious disease pathogens and other substances", "poison" into a "toxic, radioactive, infectious disease pathogens and other substances". Accordingly, the judicial interpretation of the crime adjustment 114, 115th for the "crime of throwing dangerous substance" and "negligence crime of throwing dangerous substance".

However, the general rules of the criminal law article seventeenth, Article 56 still use the "poison" two words, not with the specific provisions of the criminal law amendment accordingly, both caused by the general provisions of criminal law and the specific provisions do not join, also caused problems in understanding and in judicial practice. As the second paragraph of article seventeenth of the criminal law is full already 14 under the age of 16 people poisoning crime should bear criminal responsibility, this is without a doubt. If the full 14 people under 16 years of age on the radioactive, infectious disease pathogens or other substances, whether to bear the criminal responsibility? This is the major issues involved in conviction or not. If the answer is "yes", is clearly contrary to the principle of legality, analogy too. If the answer is "no", it is very likely to violate the original intention and specific legislative changes to the. According to Article fifty-sixth of the criminal law as provided in article, poisoning can be of additional deprivation of political rights, the same problem, put whether radioactive, infectious disease pathogens and other substances can be of additional deprivation of political rights? This is related to the problem of sentencing. Non remarkable disadvantages of synchronization, total score out of the amendment to the criminal law.

   Article second paragraph 2, forty-eighth of the criminal law"Death sentence with a reprieve, by the higher people's court decision and approval"And the law of criminal procedure twentieth conflict

   The provisions in the second paragraph of the criminal law forty-eighth, "the death penalty except for judgments made by the Supreme Court in accordance with the law, should be submitted to the approval of the Supreme People's court.Death sentence with a reprieve, by the higher people's court decision and approval", according to the regulations, with only the higher people's court has the right to judge, the intermediate people's courts do not have the power. But this is and the criminal procedure law of our country twentieth "the intermediate people's courts shall have jurisdiction over the following criminal cases of first instance: (a) - (two); the ordinary criminal cases punishable by life imprisonment, death penalty; (three)." The provisions of the contradiction, and Criminal Procedure Law201Article"The intermediate people's court sentenced two year stay of execution case, the higher people's court approved "contradictory; causing conflicts of criminal substantive law and the procedural law.

   Some people may think, the 48 section second"Death sentence with a reprieve, by the higher people's court decision and approval"Is the authorized norm, it does not exclude and deny the intermediate people's court to sentence discretion. In fact, this view is untenable. First, the trial right belongs to the public power, which is different from the private rights, the difference between public power and private rights is that it must exist in the law permits for the premise, must follow the "without authorization is prohibited" principle; and private rights exist or not to follow the "law is prohibited without the original is entitled". Second, if according to this point of view to understand, the basic people's court has suspended judgment on whether the right. Thirdly, if according to this point of view, to understand the basic people's court, whether also has the immediate execution of death sentence right.

   In fact, the provisions of the 48 paragraph second pure belong to the category of the criminal procedure law, criminal procedure law provisions should be made more suitable. Substantive law legislative power "number of fragmented files" legislative authority more procedural law, leading to the consequences.

   3, criminal law amendment added seven to use the influence of bribery, but no corresponding provisions of bribery

Criminal law amendment seven in article 388th of the criminal law after an article is added as one of 388th, is increased using influence bribery. As we all know, bribery and bribery belongs to the correspondence crime, bribery is bribery, corruption will be bribery. The amendments to the criminal law seven before criminal law also reflects this characteristic, has the corresponding provisions of bribery in the provisions of different types of bribery crime after. Such as the article 163rd of the criminal law is non national workers taking bribes, the 164 is the non national staff bribery crime; 385 is the crime of accepting bribes, the 389 is the bribery crime; 387 is the unit bribery crime, the 391 is the unit crime of offering bribes. But the amendment to the criminal law seven new bribery crime by the influence, but no corresponding provisions of bribery crime. Is it the corresponding bribery no harm to society, need not be punished? Is intentional or negligent? I don't think punishment possibility is zero, negligence may is the truth.

   Legislative paradox two, criminal omission refraction

   The legislative omission is not accidental, and none of these omissions long time attention to this fact, refraction three paradoxes of criminal legislation.

   1, rigorous and oversights

   The main function of law is to create or to establish a system of rules, duties and obligations, the provisions of power, rights or the granting of privileges, prohibited items, legislation is rigorous, contribute to the realization of these functions. The function of criminal law is more specific for protection function, security function, regulation function, it must realize their functions, also need strict legislation. The legislation of rigor one request is, must according to the unified terminology legislative language requirements, the same concept can only be used with a vocabulary to express, the same words or phrases can not express different meaning, semantic not same in different words. Otherwise, it does not meet the rigorous requirements.

   Now, we look back, "criminal law amendment three" first, second of the criminal law of the original 114th, 115th in the "poison" is amended as "poisonous, radioactive, infectious disease pathogens and other substances", "poison" into a "toxic, radioactive, infectious disease pathogens and other substances", is not rigorous, it embodies preciseness. However, the general rules of the criminal law article seventeenth, Article 56 still use the "poison" two words "and" toxic, toxic, radioactive, infectious substances "disease pathogens from the legislative intent, inconsistent, highlights the slipshod legislation. The coexistence of rigorous and oversights, this is the first paradox of criminal legislation in our country.

   2, stability and responsiveness

   The law especially criminal law must maintain its stability, not inconstant in policy; but stability is relative, it must reflect the response of the law, formulate the corresponding provisions of the emerging social problems must be regulation, to realize the social function of the law. Thus, we see a lot of criminal law provisions to increase, especially the new charge, the response is apparent.

   But the article forty-eighth of the criminal law second "the death penalty except for judgments made by the Supreme Court in accordance with the law, should be submitted to the approval of the Supreme People's court.Death sentence with a reprieve, by the higher people's court decision and approval"In 1979, and the criminal lawThe forty-third paragraph second"The death penalty except for judgments made by the Supreme People's court in accordance with the law, should be submitted to the approval of the Supreme People's court. Death sentence with a reprieve, may be decided or approved by a higher people's court." Refine on words. It is very stable. But the 1996 criminal law amendment, change the situation, criminal procedure, criminal law not coordinated, so why not responded to the new situation? The response of local too stable, this is a paradox of the legislation of criminal law.

   3, tightness and omission

   Weaving a tight criminal legislation, the criminal law as far as possible to regulate all have "serious harm" behavior, many legislators or jurists pursue, is also a lot of legislators and jurists tion of the deep root of the death penalty. The French Open close the no ground for blame, but to consider the modesty of the criminal law, and criminal network fails, be loose but never miss itself is just a beautiful myth. However, objectively speaking, the real embodiment of strictness of criminal legislation in China have, such as bribery crime criminal law amendment seven increase in one of 388th using the influence. However, the criminal legislation of strict at the same time, oversight is very obvious, the most typical as mentioned above, the amendments to the criminal law seven new bribery crime by the influence, but no corresponding provisions of bribery crime. In order to close, set to use the influence of bribery, but neglect the bribery crime, strict but not dense, sparsely and leakage, highlighted this isn't the rigor and omission of paradox?

   There are three reasons, legislative oversight and paradox

   1, the criminal law legislative thinking reason -- the "strict" more "dense" better -- Council expansion

   Reasons for the existence of legislative oversight and paradox has its deep ideological origins: woven tight net, net is "strict" and "close" as possible, in order to pursue the "strict and tight", in order to legislation and the legislation, the necessity and feasibility of totally ignore legislation, criminal legislation expansion. The criminal legislation of expansion in a sense is also due to "legal universal view". "Law of universal view" that law can regulate aspects, however, any problems are not of life needs to be adjusted by law, the law is not possible nor necessary to cover all aspects of life, the legislation should be moderate. Otherwise, excessive legislation not only cannot ascend the authority of law, but will reduce the authority and dignity of the law.

   2, the judicial practice reason -- first consideration applies to criminal law, the "criminal law" legislation blank, "demand"

The judicial practice -- first consider the misunderstanding of criminal law applicable, less consideration for civil, administrative law. Once the law to a new phenomenon can not regulate or ineffective regulation, judicial organs or personnel, in the "criminal law blank" as a response to the reasons, which lead to the "legislative demands" illusion.

   3, major cases of specific to general

   Through the analysis of some important criminal legislation background, can be found in major cases sometimes plays a special role, about the criminal legislation in a certain extent, direction and control. Legislators will put some very special, not often appears the phenomenon and behavior, for the general rise in amplification, so as to formulate a general provisions. The most typical example is the Beijing Miyun stampede led directly to the criminal law amendment six added one of 135 large-scale mass activities caused heavy casualties crime. Major cases because of its special society influence, extensive, is the inevitable impact on the criminal legislation. We can not completely deny "case thinking", but the case in general must be careful and careful.

   4, public opinion on the legislation

   Generally speaking, the public opinion refers to the public according to their level of knowledge, life experience and certain values from the emotion of an event view, attitude. Public opinion and especially with the rapid spread of modern mass media for information, public opinion will affect the real legislation, even with the legislation of public opinion. As experts, scholars, legislators, the judiciary of dangerous driving crime call is an example.

Legislation should consider public opinion, but not only is from public opinion. Because people are not necessarily the legal professionals, only starting from their own good appeal, put forward their own views. As lawmakers and legal professionals, not only to respect public opinion, consider public opinion, not blind obedience to the public, must not be emotional feelings instead of rationality, instead of law, not only good legislation, but also must stand on the professional point of view, good law.

   5, conflicts of interests, competition, coordination, and even compromise

   Generally speaking, any one group or groups of people have their own unique pursuit of interests, this is the basis for its existence and its significance. Therefore, any groups and organizations in any society can be referred to as "interest group", the concept itself is not pejorative. In modern society, the rule of law as the vast majority of ruling the country selection. But in a society ruled by law, the law as the main means and methods of social rule, more and more areas were incorporated into the legal jurisdiction, and legislation is the first key step in the rule of law, therefore, interest groups to achieve their own interests in the society is bound to influence the opposite method. In the current social situation, many interest groups, diversity, diversity of conflict of interest, competition, coordination, and even compromise, affected the criminal legislation. "Criminal law amendment (seven)" article 7 selling, illegal providing personal information of citizens illegal access to personal information and the crime of "criminal law amendment (seven)" add 12 article 2 forgery, theft, illegal sale, provide, the illegal use of armed forces special mark of sin, all with interest group competition, conflict, coordination.

   Four, the conclusion

   Legislation and criminal legislation are broad, difficult proposition, I have no intention cannot have effective solutions. I just use this paper presents problems, want to get attention. Even so, I still think, according to the objective law of legislation of the legislation, rather than established in the legislation, the legislative demand illusion, expansion of public opinion, case, interest group compromise on criminal legislation.