The third chapter        Effect of criminal law

The first section           Validity of criminal law

 

A, effect of criminal law meaning

Legal effect "mainly includes two aspects: one is a legally binding, [1] two means the effect of application of law. The term [2] validity of criminal law also has the two meanings, namely one refers to the criminal law of the binding, book called for the effectiveness of criminal law; two, the criminal law refers to the effect of the space time effect. This section first discusses the validity of criminal law norms.

Validity of criminal law norms, is refers to the criminal law enforcement for people the pointed or binding. The criminal law is to forbid people to a certain act, ordered people to a certain act, allows people to a certain act, because it is the effective specification; if the specification is invalid, the set of obligations and rights conferred is meaningless. Effect of criminal law and criminal law effectiveness (or functions) are two different concepts. "The effectiveness of the problems involved is whether those legal norms applicable to real compliance with these problems....... In some sectors of the legal system, between the validity and effectiveness of a law can be in conflict." [3], for example, in many western countries, prohibit the production, trafficking in obscenity law is a law, but there is no effective legal. In our country, should make the legal validity and effectiveness are highly unified.

In real life, people will naturally make a different response to the force of law. Make sure the evaluation of legal and confidence could be protected by law, will produce conscientious restraint; the law make a negative evaluation and that laws against themselves, often have a pent up constraint. However, no matter how people view the law, its binding is the objective existence, also not allowed "must have legal person can be bound by law, no legal person can not legally binding" situation. China's criminal law reflects the will and interests of the broad masses of the people, to maximize the positive evaluation of citizens, should give full play to its binding.

The criminal law binding is not a purpose, but a means. Legislators, the judiciary criminal law enforcement

                     

[1] see Shen Zongling: "carry out" law, "" law of load in 1988 second.

[2] see "China encyclopedia, volume" law Chinese encyclopedia press, 1984 edition, page eighty-fifth.

[3] [beauty]E. BODENHEIMER: "Jurisprudence: legal philosophy and legal method", translated by Deng Zhenglai, China University of Political Science and Law press, 1999 edition, 332nd pages.

For criminal law, is not to produce a simple constraint on people, but in order to protect the legal interests. This protection is manifested mainly through three ways: one is through the specification itself restrain people not to infringe the interests of behavior, so as to protect the legal interest; two is a violation of legal interests by punishing crimes to the protection of law; three is through the normative judicial protection of human behavior, behavior law (free). If the criminal law is not binding, it is impossible to protect law benefit.

 Two, the criminal law according to the content and binding

Criminal law binding content can be simply summarized as prohibited behavior, behavior, how how how behavior allows command. Here the "ban", "order" and "allow" for most people, but also for the judicial staff; in general terms, is behavior norms, the judicial staff, performance for the norm of adjudication. For example, the criminal law 262nd stipulation: "kidnapping minors under the age of fourteen, from his family or guardian, is less than five years imprisonment or criminal detention." On the one hand, to prohibit any person the child abduction act, also ordered the judicial personnel of child abduction act with conviction and sentencing. Moreover, the provisions of the second paragraph of article twenty-third of the criminal law: "for attempted offense, can be accomplished crime shall be given a lighter or mitigated punishment." It allows the judicial staff make a lighter, mitigated punishment decision on offense as appropriate.

On the legal basis, "the positivist school thought, law is a 'logic' (logic notion), the effect of law is binding, which is usually from the legislative authority rule is effective method. The school of natural law thought, law is an 'ethical' (ethi - cal notion), the effect of law is the ultimate method of moral sanction, so it is of validity of law must be consistent with the justice and moral. Sociological school of law, the validity of law is a 'truth concept' (factual notion), the effect of law is the social member's actual or actually binding, i.e. 'effectiveness' (efficiencyefficacy), and those who never or not to continue to social life of actual control and guide rules cannot be as the real effective method. Realist school of law, effectiveness is a 'psychological notion' (spychological notion), the psychological effect depends on the method of applying to people and people (mainly officials) accept the constraints mental attitude." [4] "logic" and "ethical" respectively from the form and in essence the validity of law, it has certain rationality; criminal law can be considered, the binding form from the criminal law's authority and mandatory, essentially from the criminal law and justice.

The authority of Criminal Law refers to the criminal law has to follow the prestige. Because the criminal law is the national formulation and social norms recognized, in the name of the country promulgated, so has the will of the state and the highest authority, which have universal binding force. The compulsion of the criminal law refers to the criminal law by the coercive power of the state to ensure implementation. Whether the elements of law enforcement, controversial in jurisprudence, but it is undeniable that the compulsory criminal elements, can best illustrate this

                     

[4] see Zhang Wenxian: "research" in twentieth Century. The law philosophy thought science Square Press 1996 edition, 433rd pages.

The point is, the provisions of the legal punishment of crime of criminal law, and the legal punishment content showed severe coercive measures; the implementation of criminal law is to protect the other laws, but also because of the criminal law is mandatory, the most severe. The compulsion of the criminal law makes the criminal law binding is obvious.

Norms of Criminal Law refers to the penal code provides behavior pattern to the people and follow these behavior patterns and no legal effect. The norm of criminal law is the universal norms, its object is generally not a specific person, it is in a certain space and time for the same items used repeatedly. This will make the criminal law is binding for ordinary people, so that people do not commit a crime mind. Criminal justice means that the criminal law is the embodiment of justice. Legislation is the corresponding legal ideas and possible future facts of life, and justice is the basic legal concepts of criminal law is justice; written words. The justice of criminal law is the most deep according to criminal law binding, unjust law is difficult to have real influence. China's criminal law is a reflection of the broad masses of the people's will, it equal protection of law, justice, punishment of crime, to maximize the embodiment of justice. In the stressed the need for China to act according to law, shall be the law of faith, don't allow people to criminal law is non standard of justice by damage to its binding force; on the other hand, in order to make the criminal law more effective, we must further increase the quality of criminal legislation.

 

The second section           Validity of criminal law in space

 

The concept of criminal law effect, space

The spatial effect of criminal law is a law to solve the problem of people in what is, what the region. From the provisions of the criminal code and the international treaties, the law can not only apply to the country in the field of behavior, which can be applied in domestic field under the condition of certain behavior. Law principles applicable scope in space on the decision of the criminal law, is a kind of application of criminal law.

Restricting the application of criminal law in foreign countries by international law. In the respect for national sovereignty and comply with international law today, do not recognize a country has to exercise the punishment for any crime in any local authority, especially not allowed to exercise the power of punishment and against his country's sovereignty. Since ancient times, application of criminal law is considered to be of international criminal law, scope of application of criminal law in space, it must be H fir the principles of international law.

The rules of international law applicable scope in the space of the restriction of criminal law, is the national protection and international cooperation. When the relationship between the behavior and the country has places, people, things, violated the national or the interests of their citizens, have used their power to the criminal law. On the other hand, prevent crime and safeguard human rights crimes, is a matter of common concern of modern international society, is all in the criminal justice activities of mutual cooperation in the pursuit of goals. Based on the requirements of the international cooperation principle, in a

Under certain conditions, a country to have no direct relationship with their international crime, may also exercise jurisdiction. [5]

Scope of application of criminal law in space, refers to the domestic made (to happen in our country in the field of crime and crime (foreign) occurred in domestic areas outside the crime) effect, the principle of territorial jurisdiction and personal jurisdiction principle are the two basic principles, other principles are the two principles of complement and development.

 Two, to apply the principle of domestic made

The criminal law on the basic principles of application of domestic make is the principle of territorial jurisdiction. On the field of a country, regardless of their nationality, has a regulation to protect their own order powers. Therefore, a country to happen in our country in the field of criminal behavior, no matter who, all applicable national criminal law. The principle of territorial jurisdiction to national sovereignty and the national penalty power as the basis, is conducive to safeguarding national sovereignty, dignity and order, expansion, to achieve the effect of procedural punishment.

Article sixth of the criminal law provisions in the first paragraph: "anyone who commits a crime in the territory of the people's Republic of China, except when otherwise stipulated by law, the law is applicable to." This is the stipulation to the principle of territorial jurisdiction.

Here said the "field", refers to the whole area within the boundary of China, including the territorial land (land and land borders within the subsoil), water (water bed and subsoil of inland waters, territorial waters and territorial waters and airspace) (territorial land, inland waters on the air space).

Here said the "law" and "the law does not apply to" actually includes three categories: the first category is not applicable China criminal law (Criminal Law of generalized); second category is not applicable criminal law case; third category is not applicable to the penal code (i.e. the "PRC Criminal Law") part of the provisions.

Do not apply Chinese criminal case means, for foreigners who enjoy diplomatic privileges and immunities shall not apply China criminal law. Article eleventh of the criminal law stipulates: "the criminal responsibility of foreigners who enjoy diplomatic privileges and immunities, resolved through diplomatic channels." This means that even the people in China in the field of crime in the criminal law of our country, also does not apply. For such regulations, foreign criminal law theory has two views; a kind of viewpoint thinks, to foreigners who enjoy diplomatic privileges and immunities shall not apply to the national criminal law, is the principle of territorial jurisdiction of the exception; [6] another view, these people do not apply their criminal law, because the existence of procedural obstacles or the crime obstructed, if the obstacles and causes disappear, is still applicable national criminal law. Although [7] is different, but the outcome of criminal law is not existence very big difference, after the view seems to be more to maintain their sovereignty.

Not applicable (including criminal law, criminal law and other special criminal law applicable only in the mainland) situation is that, for Hongkong, Macao and Taiwan area does not apply to criminal law. Because of the reason as everyone knows, the effectiveness of criminal law is not, and Hong Kong, Macao, and Taiwan regions. Although China has resumed the exercise of sovereignty over Hongkong, Macao, but

                     

[5] see [Japan] Ting wild Shuo: "general provisions of criminal law case" notes I, Faith Hill agency in 1995 second edition, ninety-first pages.

[6] see [Japan] Dleto Shigehikaru: "outlines of criminal law (general)", a literary agency in 1990 third edition, 516th pages.

[7] see [Japan] Otsuka Hito: "criminal law" of the (general), Yuhikaku publishing in 1997 third edition, eighty-second pages.

According to the "basic law" the relevant provisions of the Hongkong Special Administrative Region "and the basic law of Macao Special Administrative Region", continental criminal law there is no effect on Hongkong, Macao. According to the "basic conception of one country two systems", the criminal law of the unity of the motherland, the Taiwan area will also not applicable effect. Because of Hongkong, Macao, Taiwan is a part of China, so Hongkong, Macao, Taiwan is a part of criminal law, the criminal law China generalized, namely Chinese regional criminal law or local criminal law. In this sense, Hongkong, Macao, Taiwan still is the application of the China criminal law. Hongkong, Macao residents not only in Hongkong, Macao committed a crime, and crime in the mainland, "the former should apply to Hongkong, Macao criminal law, the latter shall apply to Lu Xingfa; but in order to avoid double trial, after consultation, the first accepts the exercise of jurisdiction by the court is more suitable. From a long-term point of view, in between the mainland and the Special Administrative Region, establish a reasonable and effective criminal system.

The first case is not suitable for China penal code is, when the criminal code enacted after the state legislature enacted special criminal law, and part of the provisions of the penal code appear to overlap of articles of law case, according to the "special law is superior to common law" principle, do not apply to criminal law, and apply the special criminal law.

Not applicable second cases China penal code is part of the provisions of article ninetieth of the criminal law of the. Provisions of the national autonomous areas: "can't completely apply the stipulations of this law, by the autonomous region or province of the people's Congress according to the basic principle of the characteristics of the local nationalities in political, economic, cultural and the provisions of this law, formulate adaptive or supplementary provisions, shall be approved by the Standing Committee of the National People's congress." Therefore, firstly, minority areas can only be not applicable penal code (in fact includes the separate criminal and non criminal legal norms in formulate adaptive or supplementary provisions) part of the situation, and not to make the penal code, the penal code in general is still in the minority areas has the effect of application. Secondly, the people's Congress of the autonomous region of minority region or province formulate adaptive or supplementary provisions, must be with the local political, economic, cultural adaptation, basic principles must be in accordance with the criminal code. Finally, develop minority area adaptive or supplementary provisions must be approved by the Standing Committee of National People's Congress, to implement.

In a word, really belongs to the exceptions to the principle of territorial jurisdiction, only the "does not apply to a situation Chinese criminal law". "Not applicable criminal law" of the situation, not the principle of territorial jurisdiction exception, just a fact of limit; "not applicable provisions" China penal code, not the principle of territorial jurisdiction of the exception, but the applicable penal code exceptions.

Ships and aircraft to hang their flag, belongs to own territory, regardless of the navigation or the park where the ships and aircraft, in crime, criminal law is applicable to all flag state, this is the flag state doctrine, is a supplement to the principle of territoriality. This idea not only has been recognized by international law, but also by many countries stipulated in the criminal law. China's criminal law sixth paragraph second: "anyone who commits a crime in the people's Republic of China aboard a ship or aircraft, this law is also applicable to." This confirms that the flag state doctrine.

Adopt the principle of territorial jurisdiction requirements to determine the crime to be, namely what factors as the standard to determine the crime occurred in its territory, have the following views and legislation: first, behavior

To say. Crime is the behavior, the behavior happening in its territory is considered a crime in their areas. [8] second, the results to say. The essence of a crime is the violation or threat of legal interest, so the results in their areas to be considered a crime in their areas. [9] third, the center said. That the middle influence behavior or intermediate results for the crime. [10] fourth, say again. The implementation of the behavior and the results are criminal behaviors or results, there is a place in their areas, applicable national criminal law.

The criminal law of our country has taken over the said. Article sixth of the criminal law provisions in the third paragraph: "the criminal act or consequence takes place within the people's Republic of China, is considered a crime in the territory of the people's Republic of china." Accordingly, behavior and results occurred in China in the field, application of our criminal law; only behavior occurred in China in the field or only results in China in the field of criminal law of our country, also apply. Not only that, only a part of behavior or only a part of results occurred in China in the field, should also be considered a crime in China in the field of. Because the behavior or results of any part of these occurred in China in the field, would be a violation of the state or citizens of our interests, undermine the legal order in our country, in order to safeguard national sovereignty and interests of citizens, should think that can be used in the criminal law of our country. If the behavior of all or results all occurred in China in the field is considered a crime in China in the field, is not conducive to the maintenance of the national sovereignty and the interests of the citizens; but, if each country has adopted this approach, is bound to create a void jurisdiction, cause of criminals to escape legal sanctions.

According to the times, in the attempted crime situation, behavior and behavior people hope that the results of, possible results, are crimes; on occasion of joint crime, joint crime has a part in the common crime within its territory or a 'part in their areas, think is a crime in their areas.

 Three, to apply the principle of foreign prisoners

On the domestic crime, the principle of territorial jurisdiction is the most ideal principle, but there are three kinds of foreign criminal behavior, should be or can be applicable China criminal law is the principle of territorial jurisdiction, which can not be solved: the first is some crimes China civil implementation in foreign countries; the second is some crime people in the implementation of foreign Chinese harm the state or China citizen interests; third is the common interests of all countries in the implementation of harm foreigners overseas international crime. The criminal law of our country in view of the circumstances, take some other principles.

(a) the personal jurisdiction principle

The principle of personal jurisdiction, is the active principle of personal jurisdiction, namely its citizens in a foreign crime, also apply their criminal law. About the principle according to, there are two different views: one is based on Nationalism

                     

[8] see the French Criminal Procedure Code "693rd".

[9] see [Japan] Ting wild Shuo: "general provisions of criminal law case" notes I, Faith Hill agency in 1995 second edition, ninety-seventh pages.

[10] Zheng Jiancai: "the general provisions of criminal law", Taiwan Sanmin Publishing House 1982, revised edition, thirty-eighth pages.

Thought, that even if their citizens in foreign countries, but also to the country, has to comply with the obligation of national criminal law. This is between the state and citizens have moral relationship decisions." [11] two is based on the idea of international cooperation, that its citizens in foreign criminal, in principle should be applied in criminal law, but the act of not punished and back into the country, according to its citizens not to extradite the principle, not the extradition of its own nationals abroad punishment, and by the country in the domestic foreign "the punishment". [12] the former comes from practice is positive personal unlimited jurisdiction; the latter comes from practice is a positive personal limited jurisdiction.

China's criminal law provisions of article seventh of the national human jurisdiction principle. First of all, PRC state personnel and military personnel who commit the crime of our criminal law provisions in China outside the field of criminal law, applicable Chinese. Such regulations, partly because the identity and authority of national staff and soldiers decided its crime in the field will directly endanger national security and interests, credit and reputation damaging state; on the other hand, is because with the development of opening and market economy, increase the staff in the field of China outside the phenomenon of crime, need to take personal jurisdiction to restrain. Secondly, the other Chinese citizens outside national staff and soldiers of the crime in Chinese criminal law the crime in China outside the field of criminal law, principle suitable Chinese; but to the highest penalty stipulated in the criminal law of China for 3 years in prison, may not be dealt with. Visible, with the exception of national staff and soldiers of the crime, the criminal law in principle only for serious crimes in China in the field of foreign citizens to exercise jurisdiction, which indicated that China's criminal law is limited in principle of personal jurisdiction. However, whether that China's criminal law on the jurisdiction over the crime of "punishment for foreign agent", it is worthwhile to study. The preliminary views of this book is, according to the provisions of the personal jurisdiction principle is to protect our country and the interests of citizens, including the international coordination of ideology, but not for the foreign agent punishment "".

(two) protective jurisdiction principle

The basic meaning of protective jurisdiction principle is, whether locals or foreigners, the crime in foreign countries, as long as the violation of national interests or citizens law, for its criminal law. Its significance lies in the fact that, to protect their own interests and their citizens law benefit. Due to the violation of national interests and national criminal law, known as the national protection principle; due to the violation of their citizens of law from the applicable national law, known as the national protection principle (passive personality principle).

China's criminal law adopts the limited protection jurisdiction principle. The criminal law eighth stipulation: "foreigners in the territory of the people's Republic of the people's Republic of China national or civic crimes, and punishable according to the provisions of this Law for more than three years in prison, this law may apply; but according to the criminal law is not punishable." Accordingly, suitable protective jurisdiction principle under three conditions:

One is committing a crime must rent has our country or the interests of the citizens, this is a prerequisite for protective jurisdiction principle. To make this restriction, which is conducive to the protection of our country and the interests of the citizens, and respect for his country's sovereignty.

                     

[11] see [Japan] Ono Shinichiro: "lecture on criminal law pandect", Yuhikaku publishing 1948 new edition, seventy-third pages.

[12] see [Japan] Hirano Ryuichi: "the theory of crime (under)", Yuhikaku publishing 1982 edition, page 249th.

 

The two crimes punishable according to the provisions of the criminal law for more than 3 years in prison. The scope of application of this will protect the jurisdiction is limited in a serious crime. It should be noted that, according to the relationship between the general provisions of criminal law and other laws, when the minimum punishment code does not reach 3 years, since the single criminal law amendment to increase punishment or criminal type, minimum sentence of 3 years in prison, but also can be used in the criminal law of our country (of course not retroactive).

The three crimes in accordance with the criminal law also should be punished. This restriction is necessary, because foreigners are just to comply with the host country in the foreign law, can not ask a man abide anywhere -- cutting state laws,:

(three) the principle of universal jurisdiction

The principle of universal jurisdiction to protect the common interests of all countries as the standard, the provisions of any international treaty violations of the common interests of all countries crime, regardless of nationality and the crime criminal human attribute, contracting or participate in the country to find the criminal exercise criminal jurisdiction in the field at. Take the principle of universal jurisdiction, mainly in order to prevent the international crimes. In twentieth Century 70 years, in order to strengthen international cooperation against international crime, growing, international has signed the Convention -- series. Such as the December 16, 1970 "Convention on the suppression of unlawful seizure of aircraft" (referred to as the "Hague Convention"), the September 23, 1971 "for the suppression of unlawful acts against the safety of Civil Aviation Convention" (referred to as the "Montreal Convention"), the December 14, 1973 "on the prevention and punishment of violations of Internationally Protected Persons, including diplomatic agents Convention on offences" etc.. The provisions of the Convention, the contracting parties shall be stipulated in the Convention on illegal acts enumerated for domestic law crime, and shall take the necessary measures, exercise criminal jurisdiction on these crimes, regardless of whether the criminal people, whether in the home. This is the principle of universal jurisdiction.

According to the provisions of the international treaty and the criminal law of many countries, apply the principle of universal jurisdiction is limited: (1) the application of the universal jurisdiction principle of crime must be harm the common interests of mankind's international criminal jurisdiction; (2) China should be the relevant treaty or participate in the country; (3) under the jurisdiction of domestic criminal law the behavior crime; (4) the criminal jurisdiction in the field in china. Therefore, the principle of universal jurisdiction does not imply any national jurisdiction for any crime has.

Our country criminal law ninth stipulation: "the provisions of the international treaties concluded or acceded to by the people's Republic of China of the crime, the people's Republic of China in the scope of the treaty obligations to exercise criminal jurisdiction, applicable law." This is also the provisions, the principle of universal jurisdiction, according to the principle of universal jurisdiction on the trial of criminal, in fact according to law is the applicable domestic law, rather than the international treaties, international treaties are not required because the legal punishment of crimes, but requests the State Party or the participating nations will stipulated in international treaties to the crime the criminal law of the crime. Therefore, the provisions for the international treaties concluded or acceded to by China's exercise of common crime

 

Jurisdiction is not applicable in China's criminal law point of view, [13] is worth discussing.

 Four, the foreign criminal judgment recognition

Thus, the criminal law of our country has taken the jurisdiction, personal jurisdiction, protective jurisdiction and the four principle of universal jurisdiction. It is not difficult to find, if there are countries also adopted these principles (most of the countries are in fact also take these principles), it will inevitably produce conflict of criminal jurisdiction: several countries have criminal jurisdiction for the same offence. So have the following problems: the country has criminal jurisdiction behavior (such as China citizens abroad to make certain SINS) is sentenced to be guilty or not guilty verdict foreign determined, whether to admit (that includes the implementation of its generalized) this decision?

The foreign criminal judgment recognition is divided into positive and negative acknowledge admit.

Positive acknowledgement, refers to a criminal jurisdiction act in the country, is sentenced to be guilty of foreign determined, the prisoner to the country, execute a guilty verdict foreign determined; if the criminal is to be determined in the foreign criminal penalty is executed, or a foreign court has declared guilty but punishment, or make the innocent decision on human behavior, then its not the prosecution. Visible, positive acknowledgement means will decide foreign court and national courts judgment equally. Many European countries actively admit.

Negative acknowledge, is the realization of the foreign criminal judgment determined not restricted their penalty, whether foreign sure is guilty or not guilty verdict, the same behavior of their exercise jurisdiction, but the foreign judgment and execution of punishment is the fact, consider. China's criminal law provisions of article Lo: "who in the territory of the people's Republic of crime, criminal responsibility shall be borne in accordance with this law, although after foreign judgment, still can be in accordance with the law; but in foreign countries have received criminal punishment, can be avoided or mitigated punishment." Take this provision is negative recognition approach.

The theory of criminal law to actively recognises that there are different views and negative acknowledgement. Some people think that, since the international collaboration, admitted that the principle of universal jurisdiction, there is no need for foreign have received criminal punishment one's punishment power; to respect foreign criminal legislation and justice, in order to make the offenders successfully return to society, must avoid the criminal subject to double punishment, it should implement the positive recognition." [14] from a practical point of view, with the increase of international communication, international crime is on the increase, the criminals often appear in the crime to the outside of the country, the relevant evidence is often seen in young committed outside the countries, crime location country to live in his country's criminal punishment, these facts are also required to implement positive acknowledgement. [15] of our theory of criminal law, said that, as a stand on one's own country, must be from foreign judgment validity constraints; but at the same time to take care of the actual situation, consider the behavior

                     

[13] see Lin quasi editor: "tutorial" China criminal law, the people's court press, 1989 edition, page twenty-second.

[14] see [Japan] Ting wild Shuo: "general provisions of criminal law case" lecture, Faith Hill agency 1995 afternoon edition second, 106th pages.

[15] see [Japan] Morishita Chung: "new trend" of international criminal law, statute hall 1977 edition, page 199th.

People have been affected by the execution of punishment in foreign fact." [16] accordingly, negative acknowledge it is appropriate. From the visible, advocated the team who stressed that the international cooperation principle, that negative acknowledge people are emphasized and the principle of state sovereignty.