(three) the basic principle of criminal law

1On the legal principle of crime and punishment. And its contents, which of the following statements are true? (2004In paper two chapter16Questions)

AThe principle of a legally prescribed punishment prohibited. Analogical interpretation and explanation of expanding, but not the prohibition of analogy to the defendant's interpretation

BThe principle of legality is prohibited. The judicial authority of the analogy to explain, but does not prohibit the legislature analogical interpretation

CThe principle of a legally prescribed punishment prohibited. Do not apply to post law behavior, but not suitable for human behavior afterwards method

DThe principle of a legally prescribed punishment for clarity. The norm of the criminal law, but not to the exclusion of normative elements

Analytical:The basic meaning of the principle of legality, mainly examines the basic content and principle of derivation. The crime punishment legal principle as the basic principle of criminal law, in many countries or the principles of the constitution, it restricts the judicial personnel, also want to control legislation. Its derivative principles including two levels of meaning:[1](a) form side, this is the basic requirement of the rule of law is the requirement of form, the judiciary, including: (1) the legal doctrine (doctrine of the supremacy of law). The legislative cannot make crime and punishment power to other organs, the judicial organ shall be applicable to exclude customary law, case law and administrative regulations and departmental rules and regulations; 2) criminal law prohibited retroactive (forbidden to apply is not conducive to afterwards method -- the defendant that adhere to the doctrine); (3) the ban against the accused analogy and analogy to explain, but not the expanded interpretation, as the two exactly how to distinguish, the main is to see this interpretation will not exceed the words of criminal law may "literal range" and the possibility of national forecast; (4) the absolute prohibition of uncertain punishment (may result in an inability to cure, but can achieve individual justice to a certain extent), also prohibits absolutely sure punishment (in the form of the requirements of the rule of law, can realize the general justice), to determine the relative legal punishment (can be realized form of the rule of law and rule of law, general justice and individual justice).

(two) the substantial side, this is the basic requirement of substantive rule of law, but also by lawmakers, against the evil law is law, including: (1) clear principle, the legislature in the formulation of the criminal law, try to use some clearly defined legal term, without or with less ambiguous legal terms such as, such as, other, if the circumstances are serious, serious legal language; (2) entity (penalties) as principle, the prohibition of improper punishment punishment behavior, there should be a reasonable crime ring, not to those who do not have serious harm to society's behavior into the scope of criminal law; forbidden to apply is not balanced, indulge in wilful persecution punishment, should apply reasonable penalty circle, shall not apply some inhuman, cruel punishment, consistent, keep between crime and penalty felony misdemeanor punishment, light punishment, in this sense can be said, the crime punishment legal principle includes the principle of suiting punishment to crime connotation.

As can be seen, in this case, A first half sentence is wrong, the second part of the sentence is correct; B is wrong, a judicial principle principle of legality is not only, also the legislative principle, legislative analogy interpretation also banned. The C is correct, this is the problem of criminal law in the retroactivity of adhering to "reflect the old and light".

Of course, principle of legality principle required is relative, the norm of criminal law is clearly shown by elements. In composition, both the narrative elements, and normative elements.[2]The former is deterministic, only need to judge's cognition can be, for example, has over 14 years of age, drugs, guns, the concept of people, property (in fact, the definition is relative); the latter belongs to the theory of criminal law "the Open Constitution of crime". For example, not an obligation as judgment crime, obligation of the judge noted the unintentional crime, crime of the plot of "serious and serious," causality "considerable" judgment and "obscene", "insult" and "obscene" and other normative concept, value judgment, these are belongs to the criminal law has no provisions are very clear, there is no way to completely clear, required by the judge according to their own values (Liang Xin), life experience and legal literacy to value judgments, and the judgment itself is a process of criminal law interpretation. These belong to the normative elements, not the legal principle of crime and punishment of the rejection. Therefore, I think, D should also be right. But because it is a single choice, Department of Justice announced the answer onlyC.

　 2On the principle of legality, which of the following statements are true? (2006In paper two chapter1Questions)

　　AThe ideological foundation. One of the principle of legality is democratic, and habits can best reflect the will of the people, therefore, will be used as the sources of criminal law does not violate the principle of legality

　　BThe principle of legality in"Method"Includes not only the state legislature enacted law, but also for the highest organ of the State Administration of law

　　C. principle of legality is not conducive to the conduct of prohibition of retroactive, but allow for human behavior retroactivity

DPart of the provisions of criminal law. The crime situation does not describe, but expressed that the accusation. This legislation violates the crime punishment legal principle

Analytical:Some of the main test derived principles the principle of legality. Democracy is one of the ideological foundation of the modern legal principle of crime and punishment, refers to the laws formulated by the legislators elected by the legislative procedure, legal representative, so the legal to adhere to the law, therefore, is it out of the customary law, even though these habits can best reflect the will of the people, but as long as the habit did not rise to the law, were not as guilty according to (convicted on), can not become the sources of criminal law. But the customary law is still people in the interpretation of criminal elements and factors of judgment must reference the illegality, liability when, can be used as identify and explain a behavior of Innocence (SIN) of reference (customary law to human behavior), can be used as a deterrent against the super regulations for law of nature the. But the applicable and interpreter must have these habits or customary law into the criminal law interpretation, find the law according to the right in the criminal law, or in the behavior of people lack the possibility of cognition of illegality is excluded, the establishment of a crime, but not directly according to custom or customary law as applicable according to the judgment. For example, can refer to the criminal law article13Provisions "proviso", or through the plot violates "plot" to explain, the explanation for the innocent or misdemeanor.[3]So,AThe first half part is correct, the latter half part is wrong. The principle of legality"Method"Only is the narrow sense of law, not the law in the broad sense, that is only the National People's Congress and by the Standing Committee of the State Council through legal, administrative regulations and local regulations, departmental rules and regulations, government regulations are not as a crime according to the. This is because, according to China's "legislative law" article9The provisions:On crime and punishment, deprivation of the political rights and restriction of personal freedom of the mandatory measures and penalties, judicial system only by law, but not to the State Council authorized to formulate administrative regulations.

BThe first half part is correct, the latter half part is wrong.

CIs correct, this is the retroactivity of criminal law to "the old and light" to reflect, is conducive to the protection of the human rights of the accused, if that law can be retroactive, would damage the national prediction on the legal possibilities, make the law lost normative behavior, but when there are favorable to the defendant, the need to guarantee the human rights based, can be retroactive.

DIs wrong, because the criminal law for the crime description includes simple counts, recounted counts, citation counts as well as blank description of crime, criminal law the crime known (e.g. natural crime of intentional homicide) not specifically stated, only expressed the charges, this is the legislative requirement, also the legislative succinct expression, does not violate the principle of legality, because the definitude is relative, specific law to achieve through legislation and legal interpretation, absolutely clear not only increase the provisions of the bloated, is impossible. The answer:C.

3China's criminal law__Crime and punishment___The statutory principle,__Crime and punishment___The legal principle is the classical formulation,"No crime without law","Nulla poena sine lege"The provisions of the criminal law. At the same time_Crime and punishment____To adapt the principle, namely the degree of punishment shall be made, and the criminals_Crimes____And the bear__Criminal responsibility___To adapt to the death penalty__Crimes___Criminals are very serious. In this paragraph of word space: (2005Paper two chapter2Questions)

A．2Fill in the"Crime and punishment",4Fill in the"Crimes"B．3Fill in the"Crime and punishment",3Fill in the"Crimes"

C．4Fill in the"Crime and punishment",2Fill in the"Crimes"D．3Fill in the"Crime and punishment",2Fill in the"Crimes"

Analytical:This is also the basic knowledge of students, attention must be paid to the options in the "several" is how many, not the few, this kind of examination in2004Years had appeared, killed many candidates, did not expect05Year and a similar problem. The examinee must according to the basic theory of criminal law, wasting a little time, the spaces fill in, then a careful calculation of number, one is to fill the empty "criminal responsibility", rather than the crime and crime. Attention must be paid to the distinction between "crimes" and "crimes", the legality is in the "crime and punishment", instead of "crimes", it not only includes the crime legal punishment, including legal. And the crime is a crime ", mainly refers to the objective aspect of the crime of content. The answer:D.

4, "the principle of legality is: (1Prohibited retroactive ()_____The principle of legality ()2The customary law ()_____The principle of legality ()3Prohibition of analogy to explain ()______The principle of legality ()4The penalty regulations (appropriate)______The legal principle of crime and punishment)." Which one of the following options and stem the space to match the content? (2010Paper two chapter1Questions)

   A-- -- -- written. Pre determined strictly

   B-- -- -- determined. Prior written strictly   

   C-- -- -- strict. Prior written determination

D-- -- --. Prior written strictly determined

Analytical:This test is the principle of legality in form side and the substantial side content understanding. The principle of legality is the specific content and principle of derivation of rich, including:1.The prohibition of retroactivity, namely before the legal principle of crime and punishment. Crime and punishment must be pre specified in the act, criminal law shall not be applied retroactively to the announcement, before the implementation of behavior. It should be noted that,Prohibited retroactive is a judicial principle,Also the principle of legislation.The following practices violate the prohibition principle afterwards method: the act does not prohibit the behavior of penalty; the behavior is the law but not the punishment prohibited; ③ afterwards to reduce crime and increase the possibility of improving the post crime; statutory punishment; the change of criminal evidence rules, it allows to fewer or less simple as the conviction based on evidence. (2) for rejection of customary law, namely written legal principle of crime and punishment. Crime and punishment by lawmakers to pass a specific program in the form of text recorded on the statute, criminal justice should prevail, and not applicable law. (3The reasonable explanation of criminal law), prohibition against the accused analogy and analogy interpretation, namely strict legality. The analogy to explain is the punishment of the law had not stipulated in advance to give punishment behavior, which belongs to the judicial arbitrariness of national behavior is suppressed, which is not allowed. It should be noted that limits the analogy to explain and expand the interpretation of,The legal principle of crime and punishment prohibited analogy to explain, but does not prohibit the expansion, but expansion of semantic interpretation must also conform to the criminal law. (4The appropriate penalty regulations), which determine the legal principle of crime and punishment. At the same time, the appropriate punishment regulations include criminal law clearly prohibit the punishment, improper punishment, punishment of three aspects of uncertainty. Therefore the question stem should be filled in the blanks:Prior, written, strict, determine,DOptions are correct,ABCWrong option. Their parentsD.

5The following statement about the principle of suiting punishment to crime which is correct? (in 2005 two papers fifty-first questions)

ATo adapt to the requirements of the criminal law. The principle of non retroactivity

B. principle of suiting punishment to crime criminal legislation to make reasonable penalty system

CTo adapt to the requirements. Principle of crime and penalty, the circumstances of the crime and the criminal nature of personal danger to

DTo adapt to the requirements in principle. The reasonable use of commutation, parole system

Analytical:It mainly examines the crime punishment adapts the principle of basic content. The basic principle is not only restricts the legislators, but also restricts the judiciary, is not only reflected in the criminal legislation stage, is also reflected in the criminal judicial stage; it not only requires the legislative when suiting punishment to crime, also requires the judge when the sentence is suitable, choose the right legal punishment, more requirements in prison in the execution time to the crime punishment adapts, flexible application of commutation and parole execution system of punishment. To adapt to the theoretical basis of the principle of crime and penalty includes retributivism and utilitarianism, the weight and the social harmfulness crime penalty has already caused the (already crime, which includes the review of sentencing objective accountability -- can be condemned or non degree, against the interests and subjective) consistent, reflect retribution thought, universality and fairness of the realization of penalty; the latter requires the penalty and crime prevention, defend the important social needs (unaccomplished crime, namely the personal fatalness of offender recidivism possibility, size, prospective sentencing) consistent (value reflects the utilitarian punishment, punishment, criminal education thought, namely, prevention of crime, criminals, and Realization of penalty individualization and utilitarian), which adhere to the law profit violation of subjective consciousness and objective behavior of heavy responsibility combination of crimes, as well as the potential threat behavior subject itself to the society and the degree of risk for the sentencing of the crime again scale the need to protect the legal interests, needs and responsibilities ". The starting point and the end result is to maximize the positive function of criminal penalty, the penalty of justice and the purpose of crime prevention.[4]The answer:BCD.

6 a man and as one day at noon to open in a park to have sex, great indignation by tourists, the adverse social impact. The A, B behavior should be how to identify? (in 2000 two papers twenty-fifth questions)

AThe crime of sexual promiscuity      BThe crime of organizing pornographic performances

CAffray crime      DInnocence

Analytical:It mainly examines the concept of crime and the crime punishment legal principle. The concept of crime has a formal definition and essential definition, the former emphasizes the criminal formal feature, namely the criminal illegality, to oppose nihilism of law; the latter emphasizes the essential characteristics of crime, the social harmfulness, opposition to dogmatism. Two in most cases is consistent, but there are inconsistencies. Because the statutory provisions, in case of a conflict, should first consider the formal definition of a crime, the maintenance of criminal law crime, namely crime when first consider criminal illegal crime. But if a behavior while in line with the form of the criminal law of the crime (formal illegality), and no serious social harm (substantive illegality), it shows that the establishment of standard damage the behavior because of "significant harm is slightly plot" but in essence not achieve some criminals are specified in the the, did not conform to the crime constitution (the unity of form and substance of the constitution of crime) as an excuse to be a crime, be excluded from the scope of criminal law adjustment. In this case, Party A and Party B's behavior belongs to openly obscene behavior, violated the social public shame, has certain social harm, but because of the criminal law of our country does not like Japan, Taiwan criminal law has stipulated that "public indecency",[5]So, can only be regarded as innocent, this is must pay the cost of carry out the principle of legality. The answer:D.

7,The first rule of civil law:"In civil activities, the legal provisions, in accordance with the law; not required by law, in accordance with the habit of not accustomed to, in accordance with the law."(2006In paper four chapter6The essay questions, a.35Points)[6]

Please:1Provisions of the criminal law. Compared with in"No crime without law"The difference between the principle and theoretical foundation;

　　2The origin of law. From the perspective of the meaning and effect according to the provisions of;

3Legal interpretation and legal reasoning. From the angle of value and condition of the provisions in the law on.

The answer request:

　1In the3Optional question one answer, or choose other angles;

　2In the analysis, comparison, evaluation. Based on the idea of using legal knowledge, and explain the reasons;

　3At the point of view is clear, argument is sufficient, rigorous logic, fluent text;

4No less than the600The word.

Analytical:The answer is not the author writes, the Justice Department announced the answer (Department of justice has not released the reference answer), for students reference.

Law theories in this paper, the examinee, I put this question made in, main is to let the students understand, now the judicial examination pays more and more attention to the theory of law knowledge and understanding, not like before, simply to study law. Simply remember the legal provisions of the examination time has passed. Specific to the subject, combined with the analysis of the basic theory of criminal law and civil law.[7]

The code is refers to "the Swiss civil code". According to the provisions of this article, from the angle of the judge, for any civil activity, not because there is no explicit legal provisions shall not accept or not judgement. In the "French Civil Code", clearly stipulatesA judge is not allowed because the law does not stipulate and refused to hear the case, and offenders will be punished.So, when the judge faces a civil case,IfNot required by law, in accordance with the habit of not habit, in accordance with the law,In short, the basic principles of the civil law has the expansion function, can be used as a judgment according to the norms of civil law, when a case is not specified, the judge must derive substantial judgment from the basic principles of the civil law, and make a fair and impartial judgment according to the discretion and conscience of his idea of justice. But for an act, because the value connotation of legal is to limit judicial power, the judge decided that the act constitutes a crime must be based on the specific norms of criminal law, and cannot refer to the basic principle of criminal law, the criminal law requires the judge to be clear in the crime to, and cannot make a substantial judgment, beyond the law so, as long as the criminal law makes no provision for a crime behavior, not according to your own discretion to make decisions, even if the behavior commit the most heinous crimes, which is the embodiment of criminal law is the protection of human rights function, but also the norm of criminal law (Law) and the norms of civil law (private law) significant differences. So it is, the criminal law is a relatively closed system of rules of civil law is the system of rules, and an open. While standing at the angle of people, because of civil law as private law, is the right norm system, as long as the law does not prohibit, citizens are free, and the citizen is in accordance with the provisions of civil law to engage in civil activities daily. On the contrary, the criminal law is the law, its main purpose is the public power is restricted by the state, the national activity also does not contravene the provisions of the criminal law, should not be punished.

In short, the civil law is a rule system for civil rights and open, the citizens of the range is wide, the soul and the thought is"The autonomy of private law and the autonomy"The criminal law, which is mainly aimed at the state of closed system of rules, the soul isTo limit the abuse of state power of punishment, the protection of human rights. As long as there is no explicit legal provisions, the state can not be arbitrarily punish citizens, citizen's freedom is also guaranteed. Therefore, in a society ruled by law, always remember:"On the public power, without law provisions (authorization), may not be exercised. For private rights, law does not expressly prohibit (limit), shall not of punishment (free);"[8]

8On the legal principle of crime and punishment, the essay questions(2008The judicial examination in four years7The essay questions, a.25Points)

　 A case:2005Years9Month15Day,BCity housewife Zhang uses the computer at homeADSLDial up, toECall way, using video and many people together"Naked chat"The public security organs cracked. In this case,BCitySDistrict People's Procuratorate to assembled licentious actives to sinSProsecution district court, after the withdrawal of prosecution.

Case two: from2006Years11Month to2007Years5Month,ZProvinceLCounty unemployed woman on the Internet in a paid"Naked chat","Naked chat"Object throughout the country22Provinces, autonomous regions, municipalities directly under the central government, seized on the computer record chat with300Many people, internet bank transfer record1000Time, profit2.4Million yuan. In this case,ZProvinceLSue County procuratorate to make profit crime of spreading obscene articles,LCounty Court in the dissemination of pornographic materials for profit and sentenced to a fixed-term6Months, probation1Years, and shall also be fined5000Element.

About the above two online"Naked chat"The case, in the judicial process, for Zhang and a how to define the crime has the following three kinds of Views: the first view should decide the crime of spreading pornographic articles (Zhang) or obscene articles for profit crime (a); the second view should be assembled licentious actives crime; the third view"Naked chat"Does not constitute a crime.[9]

The problem1:

The two online"Naked chat"For example, the law of individual freedom intervention the legitimacy and limitation from the perspective of Jurisprudence

The problem2:

According to the principle of legality, comments on the two online"Naked chat"The processing results

The answer request:1. on the basis of comprehensive analysis, put forward the views and the reasons of using legal knowledge;

　　2At the point of view is clear, argument is sufficient, rigorous logic, fluent text;

3No less than the500Word, don't repeat. 

Question: according to the principle of legality, comments on the two online"Naked chat"The processing results.[10]

"Criminal law" the provisions of article reference3Article, article363Article1Paragraph, article364Article1Paragraph, article301Article1Paragraph, article367Article.

Answer.The answer is not Justice Department announced the answer, because the judicial department did not release the reference answers, but I write, for reference only. About the problem of2Answer.

A case of Zhang's behavior does not constitute the crime of group licentiousness, this is because the group licentiousness refers to the group of treacherous constellations in real life, where "promiscuous" shall refer to the people at the same time sex. Online naked chat without sex, so do not constitute a group licentiousness. Therefore, the procuratorate is right. Zhang's behavior constitutes the crime of spreading pornographic articles or obscene goods crime is the key to profit, Zhang are "naked chat" and not specific or the majority of people, but also to see the "bare naked chat" site, if Zhang is on and not specific or the majority of people naked chat, but naked, because the "naked chat" is through video, will own video filmed with naked pictures, through the network video transmission to the society is not specific or the majority of people, can be deemed as the behavior spreading obscene film, video or pictures, constitute the crime of spreading pornographic articles, if Zhang subjectively to purpose of profit, can be identified as the crime of spreading obscene articles for profit.

The second case Party A's action can be regarded as the crime of spreading obscene articles for profit. Because the from the title information, Party A is not the majority people of network video "naked chat", and make profits, the "naked chat" behavior is through the film, video or pictures of the behavior, the social morals injury, violation of public order and good customs of social sex, with damage to the interests of law, should be regarded as the crime, therefore, the court's approach is correct. In this regard, Professor Zhang Mingkai also think, the naked chat mode, the image yourself naked through the computer transmission to others, the exposed image is also a pornographic pictures, obscene articles, can be regarded as the crime of spreading obscene objects.[11]

Of course, some scholars from the crime punishment legal principle standpoint, that between formal rationality and substantive rationality often conflict, in the rule of criminal law formal rationality is the most important, is the form of judgment should be better than substantive judgment, thus avoiding the law has not stipulated the crime, and based on the idea that the form of the interpretation of criminal law, that the "naked chat" behavior does not constitute the crime of spreading obscene objects or profit-making crime of spreading obscene articles. Because naked chat communication is a kind of information, not objects, therefore, it is not obscene articles.[12]I do not agree with this interpretation, this interpretation is a legal doctrine (form) interpretation, we advocate the substantive interpretation of criminal law, the provisions of the criminal law norms by examining the purpose, appropriately expand the interpretation of the relevant provisions of the criminal law in legal terms. In fact, in the society is not specific or the majority of people "naked chat" behavior, the speed of its spread and cause social harm is not less than the general crime of spreading pornographic articles, should be those with the community not specific or the majority of people "naked chat" identified as acts of dissemination of pornographic articles. Articles or the crime of spreading obscene articles profit crime. Of course, if it is special, a few adults own consent based on secret "naked chat", does not constitute a crime, because this is the adults between the exercise of the right to self determination of performance, if this behavior is also recognized as crimes, would infringe upon citizens about the right to self determination (Liberty), contrary to the basic spirit of the protection of human rights legal principle of crime and punishment by the pursuit of.