Some drawbacks of criminal law amendment

Since 1997 our country comprehensive revision of the penal code, our country has successively passed the eight amendment. Among them, "criminal law amendment (eight)" (hereinafter referred to as the "eight") is the biggest change, content of one of the most important of the amendment to the criminal law, plays an important role in promoting the scientific development of legislation and justice of criminal law in china. However, in the field of theory and practice to spare no effort to praise the amendment "for the first time to abolish the death penalty charges", "first", "the first amendment of general principles of criminal law" established the elderly leniency system, "first" to "community correction" into the legal documents such as valiant record at the same time, few people seriously reflect on the "repair" in eight the problem. The author thinks that the "eight" not be the pink of perfection, repair, which still has many defects that can not be ignored.

One, the severe punishment thought obviously

"Take eight" the draft statement explicitly pointed out that "eight" in the criminal policy of combining punishment with leniency for guiding principle, but the overall view, the author thinks, its wide mitigation steps are not firmly, the severe punishment thought is close, severe punishment law is still obvious, and this problem easily in the people's livelihood Protection and Leniency under cover of the neglected.

(a) mitigation steps are not firmly

"Take eight" cuts down the death penalty, perfect for the elderly and the minor criminal leniency, the leniency to those who confess lenient punishment provisions for legal reasons, though a lenient attitude, but the wide mitigation steps are not firmly.

This point in reducing death penalty problem is particularly prominent. "Take eight" although the 13 death penalty charges, but these charges are belong to the judicial practice in preparation and use less, do not have the basic crime, some crimes, such as the crime of Imparting Criminal Methods and theft, since the 1997 revision of criminal law, no application of the death penalty.[1]In addition to 13 kinds of crime, also does not have the possibility of infringement of personal security crime of transporting drugs, fraud, the crime of organizing prostitution, smuggling of counterfeit currency crimes and other crimes, should abolish the death penalty, however, the legislature is to reduce the death penalty to steadily push forward, not a less too grounds,[2]The death penalty will not be on the agenda, apparently not mitigation consistent, as high as 55 death penalty charges still exist so that the criminal law in. We can predict the future of the application of the death penalty, the actual number and not with the "eight" changes reduced, it can not be said to be "a major shortcoming of eight".

In addition, "take eight" in the mitigation of the punishment of crime, but the crime or non crime to pay no heed, also shows that law mitigation steps are not firmly. Science of criminal legislation, not just a single direction to extend the penal code, also should not timely crime promptly cleared out, the non crime and crime should be simultaneously, so as to continuously improve the dynamic crime circle. Improve the dynamic criminal circle, helps to maintain the vitality of criminal law, is helpful to improve the actual effect of criminal justice, help to train the people's concept of the rule of law, is of great significance.[3]"Criminal law amendment (seven)" (hereinafter referred to as the "seven") modify tax evasion rules make the amendment of criminal law first appeared in the "non crime", many scholars have optimistic that the next revision of criminal law the crime will be more reflected. Unfortunately, the whole process of "eight" which has not been repaired for non crime pays close attention to the problem. Recite the new charges amendment added, economic crime has always ranked first, and there are still "economic crimes" repair eight new charges of a space for one person. While economic crime although involving more than 100 charges, but the judicial organs handling charges involved is very concentrated. According to the relevant statistics, from 2006 to 2010, 42 charges the procuratorial organs in average case number less than 10, while the production, sales do not meet the standard of medical equipment crime, production, sales do not meet hygiene standards of a crime, fabricating and spreading false information of securities, futures crime is never handled, these Provisions are almost the long-term in a state of "hibernation". The author thinks, the practice of extremely low frequency of occurrence or only as a special case of the behavior, although has certain hazards, in general there is no need to be included in the scope of criminal law, the principle of necessity or violation of criminal law. However, "take eight" suspended "repair" seven "non crime" pace, and pay no attention to the incidence of low economic crimes continue to exist, the crime to crime to tradition has not really changed.

(two) to the livelihood of the people as a cover over the crime

"Take eight" will be some originally by means of administrative punishment or civil means adjustment act as crime, reduce some harm to people's life of crime "convicted" threshold, which continue to embody the criminal tendency. Because of such rules with the people's livelihood protection properties, so it is vulnerable to the support of the people. The author thinks, it is necessary to strengthen the protection of criminal law on the people's livelihood, but also should prevent the people's livelihood vulgarization and simplification.

Crime should be one of the future direction in our criminal law amendment, but the crime should be appropriate and not excessive, otherwise it will go into reverse, will be too strict. Early penalty criminal legislation to prevent invalid, but also to prevent excessive early penalty, especially for minor damage, threat law behavior, there is no need to implement early penalty.[4]Even if the violations or threat to the life of others, nor must direct the use of criminal law, the administrative penalties, civil sanctions regulations and for various types of violations of the law, to take other means of social control is the ideal. Moreover, China's illegal, crime penalty system and foreign countries, crime is to affect a person is too great, China's security detention punishment than some foreign and overseas areas such as fines, community work is heavier, completely copy foreign criminal law for many behavior early punishment is not wise. While the "fix eight" dangerous driving, refused to pay labor remuneration, pickpocketing acts on people's livelihood Protection into sin belong to excessive crime.

With the speeding is the daily life of high frequency behavior of drunk driving, the diet culture and the rhythm of life based on the tension, road construction can not keep up the automobile consumption situation because of high incidence of inevitability, and dangerous driving once convicted, there will be a lot of people are easily put criminals label, the inevitable economic the cost of the operation of criminal law increases suddenly. "Eight" after the implementation of the crime of dangerous driving, and does not play a deterrent role should be, but become the minimum threshold of crime in criminal law, many criminals sentenced to criminal detention, the disadvantages of short-term freedom penalty revealed beyond doubt. The violation of the labor contract act, the victim by filing a civil action of assumpsit can find ways to remedy the appropriate, through the civil sanction to regulation of the Act provides for the crime of refusing to pay the remuneration, obviously not necessary, lawmakers to increase "the relevant departments of the government shall pay still do not pay" in crime and "the prosecution before the payment of the remuneration of workers in the constituent elements of the crime, and bear corresponding liability for compensation according to law, may be reduced or exempted limited penalty punishment," is that legislators own lack of confidence. Similarly, for theft, burglary amount is smaller and even without causing the loss of property to others home carrying weapons theft, theft, according to "Public Security Management Punishment Law" carry out administrative punishment and criminal law can play the same strike and prevention effect of human behavior, "take eight" will be what kind of theft crime way to the crime criminal law, is bound to cause the attack is too large, the boundaries of administrative violations of law and criminal crime more fuzzy.

(three) for leniency for cover and severe punishment

Tempering criminal policy is the basic requirement to correctly grasp the broad and strict relationship, to be strict with, distinction, it is necessary to pay attention to overcome the severe punishment doctrine thought influence, prevent one-sided strictly, but also to avoid the light punishment thought influence, a lenient. Temper justice with mercy is not the same One divides into two. equivalent, but not without distinction, it is the new policy defect the Party Central Committee in the new situation of constructing a socialist harmonious society under the "strike hard" criminal policy should be proposed, its policy is to overcome the influence of severe penalty doctrine of traditional thinking. Therefore, carrying out the criminal policy of combining punishment with leniency, must determine the "broad" and "strict" reasonable standards and boundaries, the policy focus, can not be any lenient or strict measures according to his will as "Leniency" in the name of.

"Take eight" although declared to the criminal policy of combining punishment with leniency for guidance, but its bias is the severe punishment thought with mercy "and strict strict" a fully fit, the severe punishment with leniency for cover, and mitigation also claims with leniency banner is popular in the criminal legislation the result is, the criminal policy of combining punishment with leniency over "Deviation", eventually lost boundaries. This is obviously not in conformity with the lenient and severe criminal policy overall requirements, do not meet China's current penal the overweight and need to take particular care to moderately slow direction development perfect rational appeal. In judicial practice, implementing the criminal policy of combining punishment with Leniency with more emphasis on the "wide" side, and repair method "strict" side is always the mainstream, I couldn't help feeling that legislation and judicature has formed a "severely by legislation, lighter by aliasing pattern of justice". Leniency fully embodies the theory of Dialectics of nature is bright, good stuff, but not with no chink in one's armour, once the abuse will make all things lose their principles. When the distorted theory becomes the power of excuses, and used to guide practice, theory can only be out of shape, the practice will be more dangerous, can not find the ultimate truth.

Two, take the evolution of the prominent tendency

The penal code (Natural Law) is the basic norms of life order law, is directly related to the basic life stable, belongs to the judicial method. The most important guiding principle of judicial law is the stability of law, which requires the written code has stability. Frequent additions to the criminal code, although can prevent the judicial organ to the national life meddling, it affects people's basic life, hinder the national freedom of action.[5]However, "take eight" changes too much haste, modify, public participation is poor, take the evolutionary tendency is more prominent, leading to the stability of the criminal law, science, democracy at.

(a) modify the content too much

Because our country is in the transitional period of the society, many factors influence the development of the society, social life has exposed some new problems, countries have to make changes to the criminal law. But we must recognize that, legislation is a huge project, not accomplish at one stroke, especially in criminal legislation related to crime and punishment, related to the basic rights of the person, must take into account whether the country needs, legisalative condition. A short period of time repeatedly revised criminal law is lack of legislation must be forward-looking and predictability of performance, the national will be because of unable to grasp the criminal law can not effectively comply with regulations and criminal law, the attitude is likely from the respect to despise. Practice mode of criminal law amendment, although not as frequent as separate criminal law promulgated, existence of civics method knowing and judicial application of the criminal law is very disadvantageous situation, but there are not convenient for citizens to learn and understand the system of penal code, criminal law norms in play guidance function to have limitation; the judicial organ integrity and consistency of the application of criminal law is also a disadvantage.[6]However, since the 1997 Criminal Law promulgated 14 years has introduced 8 amendments to the criminal law, criminal law amendment so frequently, not only in the history of ancient and modern criminal law legislation Chinese unique, but also in the world history of documented criminal legislation, also have no equal.[7]Especially the "take eight" provisions of up to 50, total provisions closer to the top seven of the 60 amendment (removal of the effective date of the specified number). Although at present our country is in the key period of social transformation, the development of the social situation change rapidly, but such a spurt of law are breathtaking.

"Take eight" in practice mode is the most obvious feature is it for the first time to take the "general and specific provisions", there are 19 provisions in the general principles of criminal law is modified, accounting for amendment 39%. The amendment to the criminal law general principles involved in a lot of penalty system, which belongs to the basic system of criminal law reform, can be said to subvert the basic structure of the penal code, criminal law must change the tone colors in a certain extent, so for other content in the spirit of the law on the contradictory phenomenon is inevitable. In addition, "eight" of the criminal law amendment, adopted new regulations for the original provisions of charges will be "one of the" "two" approach, although it does not lead to the overall law of the chaotic system, but obviously lead to structure of individual text body confusion, rationality by provisions of the great doubt. Among them, the most difficult to understand is the crime of refusing to pay the remuneration, "take eight" and placed in the crime of sabotaging production and business operation, the general people in any case can also be difficult to understand the two crimes coexist in the same law have any relevance. Although this is the legislators in order to maintain the same number of provisions of choice, but inevitably caused the criminal law relation of chaos.

At present, the legislation in the criminal law of our country need to modify the problem really many, but the author thinks, not through the criminal law amendment way too big changes to the penal code, we cannot look through an amendment to the criminal law can solve all the problems. With the perfection of criminal reform, must consider the economic and social development, to consider the level and speed of economic and social development, it is necessary to consider the acceptability tolerance level, the social public, each step a step at a time, should be solid, should be able to stand the test of.[8]Minor repairs, repair method should do everything in one's power, capability, solve new situations, new problems appear in the social development, for the study of those contradictions are not very outstanding, it is not deep, the response is not strong, can be when conditions are ripe and then stipulations.

(two) changes too fast

The characteristics of the severity of criminal law regulating social relations, the protection of the interests of the universality of the importance and sanctions, in national and social life of the shoulder important punishing crimes, protecting human rights, maintaining stability, promoting harmony. The criminal legislation of a country whether science are of vital importance to the people and the state.[9]In our country, the criminal legislation still exists serious Department legislation, hasty legislation, legislation, because due to the legislation and other bad habits,[10]The science of criminal law is also not convincing. These issues are reflected in the "eight" also, to a certain extent that take evolution law.

"Repair many inappropriate provisions" in eight, for example, the crime of dangerous driving crime of refusing to pay the remuneration, theft and other regulations, are in a strong appeal to the relevant functional departments under the provisions of the criminal law; community correction in the judicial practice clearly is not mature, but rush in the criminal law provisions, and a general "shall be subject to community correction" community corrections for the meaning, basic content, operation procedure, executive main body are not clear, especially in the still does not have the conditions of community corrections, may appear to some criminal community correction implement, lose the necessary regulatory issues; food safety crimes amendment in the review process, is the "repair" in 2010 eight due to "poison milk powder" case and in the two review repair method for the case of release temporarily added, rush repair method has not fundamentally solve the problem of food safety crime causal relationship, it is difficult to identify the most critical issue in the practice of higher judicial probation ratio. "Take eight" although the abolition of 13 kinds of death penalty to crimes, but to the social harmfulness is relatively lower than the 13 kinds of crime and other relevant crime legal punishment due to lack of the overall consideration is not adjusted, will inevitably lead to new severe penalties for minor repair: such as "eight" cancel the bills defraud crime, crime of financial certificate fraud and credit fraud the death penalty for sin, and the serious credit than the three crimes card fraud, securities fraud and the crime of insurance fraud is the highest legal punishment was not reduced, still keep for life imprisonment, so that its legal punishment and abolished the death penalty after the three crimes are exactly the same, showing different crime same punishment; similarly, criminal law has abolished the death penalty of the crime of theft, but no clear standards for the theft of financial institutions, or the acts of the precious cultural relics, according to the relevant judicial interpretations for theft, theft of financial institutions, a huge amount of cases, can be identified as "other especially serious circumstances", 10 years fixed-term imprisonment or life imprisonment for theft, but financial institutions, if the amount involved is especially huge cases also apply equally to sentencing range, evident different crime and penalty problem.

(three) public participation is poor

In the "take eight" the revision process, although the legislature to solicit the relevant authorities, the National People's Congress, expert advice, and in the first legislative deliberation on the website of the National People's Congress published the full text of the "eight" (Draft) and its description, to the public to solicit their opinions, intentions embody democracy legislation. However, for the legislature to social public opinions whether pose, as a mere formality or really asking, how people involved in the case, people put forward what opinions, the legislature has not announced, but did not make any response. People can see, only the legislature as soon as possible in order to "fix" by eight, in many problems have not been well studied case, by the NPC Standing Committee of the National People's Congress and non voting is rushed through.

In fact, "eight" for repair, since the draft after the announcement that triggered a far from limited to legal person's attention, but the mainstream response is still years consistent system of the regular course of official duties "campaign":: draft is must through the final, highly consistent between the National People's Congress Standing Committee through the final and initial draft out undoubtedly, as lawmakers of this mainstream echo response. This one can not help but question: Criminal Law Amendment seems according to some not or inconvenience other will design a must pass through the scheme, by means of the media "campaign", formed a kind of influencing public opinion orientation, return again under the public opinion to the application, so that will be achieved.[11]

What is the elite legislation or public law, is an old topic, but at least at the present stage of legislative discourse power in our country is too centralized phenomenon is very prominent. Regardless of the NPC Standing Committee, the National People's Congress has how many people to know the law, even the highest judicial authority in the law but is also relevant departments of a few people, even the experts and scholars to participate in the legislation also is the official spokesperson of interests, many of the provisions of the body is their more highly. In the legislative system of this, many valuable sound cannot enter the legislative field, or even, also be easily overlooked because as. For example, "eight" in the third review, some experts and scholars put forward the reasonable proposal should not be removed from "the crime of endangering national security Chinese people's Republic of China" for this condition, but the legislature still do not pay attention to, expanded the scope of application of the crime of escape, the working personnel of the state and the flight because of economic crime can to obtain good reason to invoke the principle of non extradition of political crime or legal provisions in foreign against extradition and repatriation request proposed by China, causing a serious negative impact on the overseas pursuit and booty work.[12]I had no intention of evaluating ability law, just think for a fundamental change, amendment dynamic foundation, the legislature is necessary to allow more people to participate in, to give people more time to put forward opinions, to listen to the views of more and more people, especially for those different views to respond, otherwise the real meaning of democratic legislation will always be castles in the air.

The continuation of three, trivial tendency

The criminal law is of generality is not complete, it is harmful to the types of behavior, every corner can't be involved in national life, the provisions of the criminal law should not be too trivial. But it is a pity, "repair is have no predecessors fine degree eight", a catch all in one draft all problems of social trends. Lawmakers look through the provisions of the criminal law of fine social problems have emerged in the disposal of desire, because the retroactivity of criminal law cannot achieve, and so petty rules, make the criminal law will inevitably face many dangers.

(a)Spread of overlap of articles of law

"Take seven" provisions of the organization, leadership pyramid selling, there has been a great deal of controversy in the judicial practice, whether it is to explore the legislative intent of the legislature, or verify the legislative suggestions of the public security organ, or is looking forward to the "two high" judicial interpretation, still no one can accurately explain the difference of this crime and the crime of illegal business operation the. "Take eight" this should draw a lesson from this, earlier return to practice rationality, but unfortunately we see is a more trivial amendment, which for many specialized areas of issues have made provisions are not necessary. For example, "eight" in order to strengthen food safety supervision responsibility, additional food safety regulatory malfeasance, staff of state organs should take the food safety supervision and management responsibilities are explicitly included in the adjustment range of criminal law. But I can not help but ask, isn't such provisions of the criminal law on these people were incapable of action? Don't make the criminal law will see light suddenly on their duties do this? Obviously not. Regulations for food safety regulators malfeasance can completely according to breach of privilege and be forgetful of one's duties crime solving, and attempts by the subjective desire of additional provisions strengthen the consciousness is likely only legislators wishful thinking, just as "drunk driving conviction for drunk driving" did not effectively solve the problem. "The law" the eight way to repair the trivial is a direct consequence of the criminal law in the overlap of articles of law phenomenon more common, there is a more narrow space law, criminal law more chaos.

(two) the language of the law is not perfect

Criminal law should be detailed, determined, in order to avoid too large for the same case because of different understanding of judicial personnel in the treatment gap,[13]Determination of draw further apart repair of trivial law and, it leads to legal language is not perfect, not thorough, many exist in terms of ambiguity, especially in the inherent provisions directly increase the text approach is more easily lead to ambiguity. "Take eight" the most typical problem is the provisions on juvenile recidivism, the article sixty-fifth of the criminal law "but excluding negligence crime" is amended as "but direct criminal negligence and under the age of eighteen crimes except". "Eight" after the implementation, the procuratorial organs around constantly to the Supreme People's procuratorate departments to reflect the existence of a variety of understanding, what is the first sin after sin were underage personnel constitute recidivism, or before the sin after sin a sin minors can constitute recidivism? Only from the text interpretation is indeed difficult to grasp. Visible, only the law comprehensively and ignore the legislative technology, will enable the legal language is not perfect, discounted to determine the law. And "eight" for the pursuit of a comprehensive repair and regulations "recidivists and for intentional homicide, rape, robbery, kidnapping, arson, explosion, dissemination of hazardous substances or organized violent crime was sentenced to ten years in prison, criminals to life imprisonment without parole,", but the article seventeenth of the criminal law. "Poison" the crime of words is not modified, due to the failure to amendments to the criminal law general provisions and the specific provisions at the same time, resulting in the confusion of understanding. "Criminal law" the seventeenth paragraph second of the full 14 years of age under the age of 16 people poisoning crime whether to include delivery of radioactive substances, infectious disease pathogens and other hazardous substances of sin? If it is, then he shall bear criminal responsibility, if not, it shall not bear criminal responsibility. According to the principle of a legally prescribed punishment for a crime, the law does not expressly provided, shall be convicted and punished, but this could also violate the criminal law is amended the original intention.[14]

(three) the theory of criminal law is despised

The criminal law amendment should adhere to the principle of necessity, that expectation will be unlimited fine, absolutely certain laws, so as to prevent corruption in the judiciary idea is unworkable, the absolute principle of legality eventually abandoned by history.[15]The criminal law theory is broad and profound, with many new situations and new problems in practice can be solved, the law of trivial is contempt for the criminal law theory guiding role. But many of the provisions in the "eight" while ignoring the repair of criminal law theory guiding role. For example, shall assist force others to work in crime, assist the organization prostitution crime can be solved by criminal abettor theory, and there won't be any problems, it is not necessary as the "notice" clearly written in the criminal law. Also, "take eight" provisions for foreign officials, officials of public international organizations of bribery, although the "provisions of the United Nations Anti-corruption Convention", but this kind of people identified as the non national staff bribery in the "other units of staff" shall be investigated for criminal responsibility is no problem, the opposite simple bribery provisions, signal transmission is a foreign public officials, officials of public international organizations of bribery in the criminal law of our country lost the basis of jurisdiction.

(four) the judicial initiative Limited

The judge, prosecutor, our ability to explain on the whole is still relatively low, if the request from the interpretation of the era to legislation time, will inevitably lead to a sharp increase in the provisions of the criminal law interpretation, in turn and bear the burden of. Also, to increase the provisions of the criminal law, does not improve the judges, prosecutors in the criminal law on the provisions of the criminal law; increase of judges and prosecutors, defects, the inevitable The loss outweighs the gain.; to formulate a need not explain penal code, just a fantasy.[16]In the judicial practice of the myriads of changes, the judicial personnel should be combined with the case to make independent thinking, to ensure that the criminal penalty according to the crime. If the law is too detailed, the subjective initiative of the judicial personnel will be subject to restrictions, they will be too dependent on criminal law, more afraid than free discretion. For example, "eight" the new organization sell human organs sin is new behavior, but also in the judicial practice is not incapable of action, judicial organs in accordance with the law to differentiate the crime of illegal business operation, the crime of intentional injury to most of such behavior, not indulge crime, and the article second, paragraph third of intentional injury, intentional homicide, the crime of intentional injury, theft, crime of insulting the corpse of the "notice" is the use of criminal law theory to explain the problem, but all stipulated in the criminal law. Provisions such as frank, judicial personnel generally according to the case shall be given a lighter punishment, the problems are not in the judicial practice, especially in theThe Supreme People's court, the Supreme People's Procuratorate"Some problems about identification crime with circumstances of sentencing to surrender, opinion for the duty crime cases"And related judicial interpretations file is specified, the behavior is apparently not essential provisions of the criminal law.

Conclusion

As a vested interest, flatter is easy; as independent interests, look coldly from the sidelines at ease. But in the key period of the rule of law, in criminal law is far from reach the acme of perfection of the reality, in law discourse power is too concentrated situation, different voices and different opinions for the scientific development of the criminal law is even more valuable. Many of the author's opinions may not mature, but is willing to always maintain a sense in the future of our criminal law practice, to overcome the drawbacks of severe punishment, their evolution, trivialization, usher in a true science of criminal law.