The criminal law amendment (eight) for analysis of retroactivity

  "PRC Criminal Law Amendment (eight)" by the nineteenth meeting of the Standing Committee of the people's Republic of the Eleventh National People's Congress on February 25, 2011, shall enter into force as of May 1, 2011.

"PRC Criminal Law Amendment (eight)" (hereinafter referred to as the "criminal law amendment (eight)") the further implementation of the lenient and severe criminal policy, the implementation of the CPC Central Committee and the sixteen session of the six plenary session adopted the "CPC Central Committee on the construction socialism harmonious society certain major issue decision", provide a more complete criminal judicial guarantee for socialist harmonious society.

  "Criminal law amendment (eight)" the abolition of the 13 non violent economic crime death penalty, the elderly, minors special protection, embodies the spirit of the state to respect and protect human rights in the constitution, "the death penalty, the strict control of the death penalty" basic criminal policy to the young and old tradition of law. At the same time according to the need of social and economic development, "criminal law amendment (eight)" to "malicious", "traffic accident", "drunk driving", "racing" "the illegal trade in human organs" into sin, to expand the scope of protection of criminal law. The people at the present stage of China's internal contradictions, crime, the struggle is complex, the maintenance of harmonious and stable social onerous task, "criminal law amendment eight" expand the scope of special recidivist, punish the crime of terrorist activities. Appear in the judicial practice of our country's "the death penalty, punishment on students based on the phenomenon of light", "criminal law amendment (eight)" also strictly limit the sentence commutation, there will be on-line increased to 25 years in prison.

    "Criminal law amendment (eight)" before the implementation of article sixty-ninth of the criminal law is punishment provisions: before the judgment is pronounced as a committed several crimes, except sentenced to life imprisonment and death, should be above the maximum total term following, several sentences, as appropriate, decided to be executed, but control cannot exceed three years, criminal detention of not more than one year, are to be sentenced to not more than twenty years. "Criminal law amendment (eight)" to article sixty-ninth of the criminal law is amended as: "before the judgment is pronounced a committed several crimes, except sentenced to life imprisonment and death, should be above the maximum total term following, several sentences, as appropriate, decided to be executed, but control the high of not more than three years, criminal detention not more than one year prison sentence, the sum is less than thirty-five years, the maximum not more than twenty years, the total sentence of thirty-five years or more, the maximum not more than twenty-five years. Compared with the amendment of criminal law, "criminal law amendment (eight)" will have a maximum sentence of life from 20 years to 25 years, actually increase the punishment for acts committed several crimes in criminal law.

  "Criminal law amendment (eight)" since May 1, 2011, due to the new amendment increased the penalties for the criminal trial, it is necessary to clarify the "criminal law amendment (eight)" the retroactivity of combined punishment for several crimes.

   The retroactivity effect, also known as the law retroactive law, refers to the effect of previous events and behavior are applicable. If the application will have retroactive effect, if not applicable, this method would not have retroactive effect. In modern law, general law is only applicable to take effect after the events and behavior, does not apply to force in front of events and actions, which adopted the "law of non retroactivity" principle.

   According to the law to play the role of form and content in social life, the role of law can be divided into normative and social effect. Normative role, is based on the standard fingering on people's behavior, according to different objects of law, i.e. different behaviors, norms can be divided into guidance, education, evaluation, prediction and forced five effects. The legal guiding function, both determine the guidelines or uncertain guide, is to provide a set patterns for people, guide people to implement their own behavior in accordance with the law. The new law enacted before, there is no established patterns of behavior law provides, so after the promulgation of the law is not on the basis of the model of people's behavior to guide. In other words, the new law promulgated before the people's behavior, only in accordance with the law to adjust. In addition, also has the forecast function, namely, by virtue of the existence of the law, people can be estimated in advance between the legal consequences of behavior. But, not promulgated the law, not as people know, nature also can not play any role, therefore, it has no retroactive effect. Method is not retroactive effect can be traced back to an important principle "in the ancient Rome law law applies only to the future" popular is the "can not with today's regulations to restrain the behavior yesterday".

Our country law accepted the "law of non retroactivity" principle, in order to protect the citizens, legal persons and other subjects better legitimate rights and interests of the private right, the main favorable law retroactivity. "Legislative law" the eighty-fourth stipulation: laws, administrative regulations, local regulations, autonomous regulations and separate regulations, rules of non retroactivity, but except for special regulations to better protect the rights and interests of citizens, legal persons and other organizations for. "Criminal law" the twelfth regulation, after the founding of the PRC and before the implementation of this law, if the law is not considered a crime, applicable law at that time; if the laws at the time considered a crime, in accordance with the provisions of law fourth chapter of eighth shall be prosecuted, according to the criminal legal responsibility, but if this method is not considered a crime or imposes a lighter punishment, this Law shall be applicable to the basic principles, the retroactive effect of criminal law in our country is "the doctrine of" namely "law of non retroactivity principle". According to "the Supreme People's Court on the application of time validity of criminal law provisions of interpretation of several issues" (Interpretation No. [1997]5) and "the Supreme People's Procuratorate on procuratorial work in the specific application of article twelfth of Criminal Law Amendment issues notice" (high hair release word [1997]4 date), retroactivity "basic principles of criminal law from the old and the principle of lighter punishment" can specifically from the following four aspects understanding: 1, when criminal law was not deemed a crime, the criminal law as a crime, can only be used prior to the amendment of criminal law, the criminal law has no retroactive effect. In this regard, not to the new criminal code as a crime shall be investigated for criminal responsibility by the people's behavior. 2 at the time of the criminal law as a crime, but the current criminal law is not considered a crime, so long as the behavior without trial or sentence has not yet been determined, should apply the current criminal law, the criminal law have retroactive effect. 3 at the time of the criminal law and criminal law are considered a crime, shall be prosecuted in accordance with the provisions of the criminal law and the fourth chapter eighth section, according to the principle of the criminal law shall be prosecuted for criminal responsibility. This is the doctrine of the mean from the old. However, if the criminal punishment of the criminal law is to weight ratio, apply the existing criminal law. This is a principle. 4 if the law has made an effective judgment, the judgment shall continue to be valid. Even according to the provisions of the criminal law, the act does not constitute a crime or sentences is the criminal law should be light, is no exception. At the same time, make "the Supreme People's Procuratorate the Supreme People's Procuratorate on the implementation date of the revised criminal law to crime, span continuous crime and other homogeneous number crime should reply how to apply the criminal law issues" (high hair release word [1998]6 date) to solve the problem of the revised criminal law criminal law across the implementation date, continue to make continuous offence and other species the number of crimes. The above provisions to solve the retroactivity of single crime in our country, but it does not solve the "criminal law amendment (eight)" the retroactivity of the sixty-ninth crimes, because China's current all the retroactivity of criminal law, judicial interpretation of law are all based on single crime or a crime criminal law applicable objects, while the "criminal law amendment (eight)" sixty-ninth to the number of the crime object, applicable law, the current law judicial interpretation has not made the corresponding provisions. "Criminal law amendment (eight)" the maximum period for the sentence from 20 years to 25 years, China's criminal law "the doctrine of" based on cross method, the number of crimes of sentences must be effective measurement, so as to ensure the correct application of punishment, specifically refers to the crime behavior before and after the May 1, 2011 respectively, the implementation of a number of criminal acts, the total sentence in prison for more than 35 years, how to apply the declaration penalty problem.

   The people's court in criminal trials, "not applicable will be involved in a number of criminal sentence in May 1, 2011 after the simple sum of the doctrine of criminal law amendment eight" the punishment rules, otherwise it will violate the criminal law of our country "the doctrine of" namely "law is not retroactive to principle", may add to the victim's in prison, but also must consider the specific crime before and after May 1, 2011 the sum of restricted period on the basis of prison sentence, otherwise it will violate the criminal law of our country "the principle of suiting punishment to crime," evaluation of prediction of law, leading to loss of function.
    Based on the above analysis, the author thinks that the "criminal law amendment (eight)" will appear after the implementation of the following effects of combined punishment for several crimes retroactive, "according to the basic principle of our country the retroactive effect of criminal law from the doctrine of", according to the following classification methods.

    A, crime in "criminal law amendment (eight)" a number of criminal behavior before the implementation of the sum of the fixed-term sentence, no matter in 35 years or 35 years, even if the criminal justice activities in the "criminal law amendment (eight)" after the implementation, in 2011 May 1 days, should application of crime law, which is "criminal law amendment (eight)" before the punishment rules, the maximum period of imprisonment not exceeding 20 years. Prediction and evaluation legal function behavior on the basis of existing law, restrict and regulate the tomorrow's behavior, but not today people comply with tomorrow's rules, so the amendment to the criminal law "(eight) occurred in the case of the former crime criminal trial number" even if the amendment to the criminal law in the case (eight) "after" all should apply the "criminal law amendment (eight)" before the combined punishment for several crimes.

   Two, crime in "criminal law amendment (eight)" before the implementation of the one or a plurality of criminal acts, in the implementation of and implementation of one or several crimes, as long as in the "criminal law amendment (eight)" criminal behavior after the implementation of the sum of the fixed-term imprisonment not exceeding 35 years if the criminal behavior, plus the amendment before the implementation of the fixed-term sentence of more than 35 years, the maximum sentence the combined punishment for several crimes can not exceed 20 years. "Criminal law amendment (eight)" will be in prison for the maximum period of time up to 25 years, the application of the method of the conditions, the total sentence of more than thirty-five years, the maximum not more than twenty-five years, because the crime in "criminal law amendment (eight)" after the implementation of the total number of crime the sentence of not more than 35 years, the sum of the criminal law to meet more than 35 years, it must be superimposed "criminal law amendment (eight)" before the crime behavior of the sentence, but if this calculation, will today's responsibility in tomorrow, for tomorrow's rule evaluation, in violation of the "law of nature non retroactivity of criminal law of our country" and "the doctrine of".

    Three, crime in "criminal law amendment (eight)" before the implementation of the one or a plurality of criminal acts, in the implementation of and implemented several behavior, as long as in the "criminal law amendment (eight)" crime after the introduction of the sum of the fixed-term sentence of more than 35 years, the combined punishment for several crimes should be applied "criminal law amendment (eight)" on the punishment rules, namely the maximum sentence of not more than 25 years, in the condition evaluation, only punishment rule "criminal law amendment (eight)" criminal behavior after the implementation of the new law is sufficient to meet the applicable conditions of 25 years in prison, criminal law amendment before implementing behavior may be sentenced to a total period of sentence was criminal law amendment implemented fixed-term sentence absorption. Crime in "criminal law amendment (eight)" after the implementation of the crime behavior, the sum of the term for more than 35 years, should be "criminal law amendment (eight)" 25 year following punishment sentence, because the behavior of people in the "criminal law amendment (eight)" after the implementation of the act shall be the amendment of the constraint, "criminal law amendment (eight)" has direct effect on him after the implementation of the act, the legal consequences of behavior one can predict his wrongdoing, under the above conditions, without regard to conduct in the implementation of the amendment before the may constitute a crime in prison, because the behavior of human accept the fixed-term sentence has reached the highest limit new regulations.

  Four, crime in "criminal law amendment (eight)" before the implementation of the one or a plurality of crime and "criminal law amendment (eight)" the sum of crime after the implementation of the measure fixed-term sentence alone or stack are not more than 35 years, should be "criminal law amendment (eight" the number of crimes) before and after the implementation of the implementation of all phase term superposition, measuring total fixed-term sentence, and then apply the "criminal law amendment (eight)" punishment rules applicable criminal law before the combined punishment for several crimes, namely declaration penalty of not more than 20 years. Crime in "criminal law amendment (eight)" crime respectively before and after the implementation of the applicable rules must be combined punishment for several crimes, a maximum sentence of superposition sum of all measurement, as the basis of punishment, as long as the amendment of the same behavior is considered a crime, because the "criminal law amendment (eight)" is a change in the for the maximum sentence, not changing the behavior is a crime, no matter whether the crime "cross law", do not change the behavior of their own behavior is expected, the number of crimes in the implementation of the amendment either before or after, or part at the front part of the evaluation, shall be subject to criminal law. The amendment before the term term superposition and amendment after the superposition of legal effect is the same, the crime involved in specific period sentence should all measurement to the sum of the sentence, but the total sentence of more than 35 years can only apply to "criminal law amendment (eight)" punishment regulations before, that is the highest with sentence in prison for 20 years, this and our country criminal law "the doctrine" is essentially the same.

    Five, "criminal law amendment eight" rules of comprehensive application of combined punishment for several crimes. According to the above analysis, the applicable law can be solved in the "criminal law amendment eight" before and after the implementation of the general criminal punishment, but more complicated "upgraded" punishment punishment but need to use the analysis method of comprehensive evaluation. China's criminal law and judicial interpretation of the provisions of part of the charges, repeatedly implement a crime as the facts or circumstances a heavier punishment, upgraded. Such as the article 263rd of the criminal law the crime of robbery, any one of the following ten years imprisonment, life imprisonment or death, and concurrently be sentenced to a fine or confiscation of property: (four) repeatedly robbed or large amount of robbery; Article 236th of the criminal law of the crime of rape, rape women, carnal knowledge of a child, one of the following circumstances, ten years or above the sentence, life imprisonment or death: (two) the rape of women, having sexual intercourse with a minor people; Article 267th of the criminal law of robbery, snatch the amount involved is especially huge or other especially serious circumstances, the agency for more than ten years the imprisonment or life imprisonment, and concurrently be sentenced to a fine or confiscation of property, "the Supreme People's Court on hearing the snatch of the application of law in criminal cases to explain the" first: plunder of public or private property "large amount", "huge amount", "huge amount" standards are as follows: (two) plunder of public or private property value of five thousand yuan to twenty thousand yuan, for "huge amount"; (three) to snatch public and private property, the value of thirty thousand yuan to one hundred thousand yuan, for "a huge amount of". Article second whoever seizes public and private property to Article 1 of this interpretation (a) provision of "large amount" standard, with one of the following circumstances, in accordance with the provisions of the first paragraph of article 267th of the criminal law, in order to snatch crime shall be given a heavier punishment: (three) a year from more than three times; fourth plunder of public or private property, the amount of close to the first article (two), (three) the provisions of the "huge amount", "huge amount" standard, and has one of the circumstances prescribed in article second of this interpretation, can be identified as "other serious circumstances" or "other especially serious circumstances". Article 240th of the criminal law of the crime of abducting and trafficking in women and children, trafficking of women and children in any of the following circumstances, department for more than ten years of fixed-term imprisonment or life imprisonment, and concurrently be sentenced to a fine or confiscation of property; if the circumstances are especially serious, sentenced to death: (two) the trafficking of women and children three people, the criminal law article 358th of the crime of organizing prostitution, forced prostitution any of the following circumstances of the crime , the agency for more than ten years the imprisonment or life imprisonment, and concurrently be sentenced to a fine or confiscation of property: (three) forced people to engage in prostitution or repeatedly forcing others into prostitution; etc.. If the behavior of people in the "criminal law amendment eight" before and after the practice of the criminal activities and achievements, and upgraded the aggravating circumstances across the "criminal law amendment eight", how to apply the combined punishment for several crimes will become very complex. The key to solve all three problems: 1, across the "single crime criminal law amendment eight" aggravating circumstances was sentenced to a period corresponding sentence as a superposition of Radix combined punishment for several crimes should be calculated before or after May 1st. 2, a plurality of upgraded penalty measurement of period superposition sum term. 3, the sum of the fixed-term sentence should be how to choose suitable "criminal law amendment eight" before or after multiple crimes rule.

   The author thinks that the analysis of multiple crimes rule system can according to the following steps: the integrated use of general charges of aggravated crime 1, single upgraded punishment regardless of whether the cross "criminal law amendment eight" should be evaluated in sentencing, because the "criminal law amendment eight" did not change the specific behavior is crime, sentencing to apply upgrade the punishment standard, unified evaluation the aggravating circumstances should accept the criminal law in 1997. A number of violated the same single crime 2, conduct in May 1, 2011 after the behavior has aggravated punishment applicable conditions meet upgraded, the single crime penalty calculated after May 1st, such as the perpetrators have 1 or more times a robbery before May 1, 2011, in May 1st after the implementation of more than 3 times the robbery, the robbery on the behavior of the punishment should be in May 1, 2011 after the total term superposition base, with the common crime reason for the third cases; otherwise, only as a superposition based number before May 1, 2011 the sum of the sentence, such as the behavior of people in May 1, 2011 before the implementation of the 2 act, in May 1st after the implementation of the 1 robbery, the reason for the common crime in second cases. 3, the same rules apply to other upgraded punishment, will occur in May 1, 2011 before or after a period of the sentence are superimposed, as in May 1, 2011 after the total term of more than 35 years, it is "criminal law amendment eight" after the implementation of the rule of reason combined punishment for several crimes, common crime punishment third, otherwise applicable "the amendments to the criminal law eight" before the punishment rule, reason with ordinary crime crimes in second cases. 5, both before and after May 1, 2011 were superimposed fixed-term sentence is much less should be evaluated in the sentence, such as the 2010 1 May 12 years action sentence, sentence 14 years after May 1, 2011, the evaluation of the total term is 26 years, with the common crime reason for the fourth cases, only the measure in May 1, 2011 before the term in prison for more than 20 years is 20 years of punishment absorption measurement in May 1, 2011, after more than 25 years period term is 25 years sentence absorption.

   A known problem had to solve this crime, namely single upgraded punishment may be sentenced to life imprisonment or the death penalty applicable to. As the crime of robbery in the criminal law (Amendment eight) before and after the implementation of the crime, constitutive elements of the plot, there were no changes, so the behavior of people across the criminal law amendment (eight) evaluate the robbery implementation should accept the punishment, they may be sentenced to prison, no matter is "criminal law amendment" before or after eight criminal punishment criminal law does not affect the behavior of people, namely single crime are to be sentenced to the maximum punishment is 15 years, but if the behavioral person may be sentenced to life imprisonment or death with reprieve, "criminal law amendment" before or after the eight different legal provisions of the applicable will directly affect the commutation of sentence, because the "criminal law amendment eight" the life imprisonment and death sentence has undergone substantial change.

  "Criminal law amendment eight" before the penalty prescribed in article fiftieth: sentenced to death with a suspension of execution, the execution period, if not intentional crime, after the expiration of two years, to life imprisonment; if there are major meritorious service, after two years, reduced to fifteen to twenty years in prison; if the intentional crime, verification, approval by the Supreme People's court, execution. While the "penalty fiftieth provisions of the criminal law amendment eight:" after sentenced, the suspension of execution period, if not intentional crime, after the expiration of two years, to life imprisonment; if there are major meritorious service, after two years, reduced to twenty-five years in prison; if the intentional crime, verification, approval by the Supreme People's court, execution. Through the comparative analysis of the penalty, "amendment eight" will undoubtedly add to the death sentence with a reprieve offense. At the same time, "criminal law amendment eight" will have a substantial impact on the non commutation of sentence. "The Supreme People's Court on the provisions of article sixth, the provisions for the commutation of the sentence" on several issues of specific application of law case, no criminals in prison during execution, if true repentance, or performs meritorious services, after serving a two year sentence, the sentence could be. Commutation range: representation of true repentance, or performs meritorious services, in general can be reduced to eighteen years more than twenty years in prison; the major meritorious services, can be reduced to thirteen to eighteen years in prison. The amplitude of the commutation is according to the time of the maximum sentence of 20 years in prison for the reference standard, but now the "criminal law amendment eight" will have a maximum sentence of life in prison up to 25 years, it is bound to the Supreme People's court has influence on the non criminal sentenced to applicable range of commutation, "criminal law amendment eight" no period sentenced to fixed-term imprisonment is the specific range may be general for 23-25 years, the major meritorious services reduced to 18- 22. Based on this, several crimes across the "criminal law amendment" implementation of eight may be sentenced to no period or the application of suspended death sentence amendment before or after the criminal law on the crime of specific sentence produce substantial effect. In order to facilitate the people's court in this kind of phenomenon correctly apply the penalty, carry out the basic principles of "our punishment from the old and light", I think can from the following two classification:

    1, if the behavior of people in "the same crime criminal law amendment eight" after the implementation of the constitution is no period or has a separate sentence sentencing standards, the court applied the revised criminal law and commutation rules, "the same crime criminal law amendment eight" before the sentence was "criminal law amendment eight" later the same crime involved sentence absorption, in this case, the same crime behavior occurred in the "criminal law amendment eight" after the implementation of the law, accept the assessment, in accordance with general time penalty efficacy requirements.

    2, if the behavior of people in the "criminal law amendment" after the implementation of eight times violated the same crime behavior, the facts of the crime or the plot is not enough to be "no period or with criminal law amendment eight" after, even if the superposition of "criminal law amendment eight" prior to the implementation of the violated the same offences to apply no or the death penalty standard, also can only apply to a revised front no period or death penalty and commutation rules, because the "criminal law amendment eight" aggravated the reprieve or no period of punishment, criminal law amendment act in "eight" after the implementation of the actions alone are not up to the revised criminal law applicable to the "no" or "reprieve" standard, effectiveness evaluation for phase behavior modification on as before the implementation of the criminal law amendment, is undoubtedly the "law retroactive" violated "the old and light" principle, in this case, evaluation repeatedly violated the same charges amendment and behavior should accept the punishment, as long as the constitution, the plot does not change, but if used with or without period is needed for the amendment of the "reprieve", "no time" and commutation rules.

                                          Author: Sichuan Ketong An Sijie law firm

                                          Sichuan Province Mianyang City Linyuan Road No. 84 in the middle of three 11 floor building

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