Henan jinxueyuan law firms Ma Liang

 

    In April 20, 2010, the Supreme People's Court issued the "Supreme People's Court on the" PRC Criminal Law Amendment (eight) effect > time interpretation "(method 2011) release (No. 9), a total of eight, 13 paragraph. The interpretation shall be implemented as of May 1, 2010. Effect of time of criminal law, which solves the problem of criminal law from time to time check with applicable effect, including the effect of time, time to failure, retroactivity etc.. According to the principle of legality, conviction and sentencing in criminal law behavior is limited. Therefore, the aging problem has profound influence on conviction, sentencing.

   Criminal law amendment eight background isWith the development of society and economy, and the emergence of some new situations and problems, need to the relevant provisions of the criminal law of change. To implement the lenient and severe criminal policy has a far-reaching influence. Time effect problem is also reflected in these principles, policies. To strengthen this area of study for a lawyer's occupation, particularly important.

     

 

    The people's Republic of China criminal law amendment (eight) "appropriate", according to the relevant provisions of the criminal law, the people's court in May 1, 2011 after the trial of criminal cases, the criminal law provisions of the relevant issues as follows:

    

    This section identifies the applicable object, namely in May 1, 2011 after the trial of criminal cases.

 

 

    Article 1 in April 30, 2011 before the crime shall be sentenced to probation, control or in accordance with the law, the people's court according to the specific activities in crime, that is necessary and prohibit criminals in the control period or probation period, enter a particular area, field, contact person, shall be governed by the provisions of article thirty-eighth of criminal law amendment after second or seventy-second section second.

   The criminals in the control period or probation period, the people's court in violation of the ban, provisions of article thirty-eighth of criminal law amendment after fourth or seventy-seventh section second.

 

    This article is aimed atApplication of perfect control sentence and probation, parole execution mode.Regulation is a restriction of personal freedom but not for punishment. The amendments to the criminal law eight according to the new situation, to control execution timely adjust, targeted for necessary action bundle of criminals sentenced to public surveillance, to adapt to the needs of the transformation and preventing crime. That is to say, these control measures can be applied to 2011 months before the April 30th crime. Retroactivity of criminal law, the criminal law of our country twelfth is taken from the doctrine of. There is no taken from the old principle, is not a principle, but considered from the angle of criminal policy, take "retroactivity" principle. For the execution style appears in the reality of the problem, take measures to improve the criminal law, aims to achieve better.

 

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   The revised article thirty-eighth of the criminal law second:"Sentenced to control, can according to the crime situation, also prohibit criminals to engage in special activities during the period of execution, into specific regions, specific place, contact person." 

   After article thirty-eighth of the criminal law fourth:"Violation of the second paragraph of the ban, by the public security organs in accordance with the "Regulations of Public Security Administration Punishment Law of the people's Republic of China."." 

   The revised article seventy-second of the criminal law second:"Probation, according to the criminal case, also prohibit criminals to engage in special activities during the probation period, into specific regions, specific place, contact person."

 

 

 

    Article second In April 30, 2011 before the crime, sentenced to death with a two-year suspension of execution, the applicable provisions of article fiftieth of the criminal law amendment before.

   There is a recidivist, or committing a crime is intentional homicide, rape, robbery, kidnapping, arson, explosion, dissemination of hazardous substances or organized violent crime, extremely serious crime, according to criminal law amendment before given a suspended death sentence does not reflect the principle of suiting punishment to crime, and according to the amended criminal sentenced at the same time decision the restrictions on commutation can penalty according to the provisions of the applicable criminal law fiftieth, amended section second.

 

    This article in view ofIsThe limitation to be sentenced criminals commutation. Because of the reason as everyone knows, such as corruption and bribery cases, there is a reprieve, but not in prison a few years out of the situation. This makes the majority of citizens has great distrust of the system of criminal law, judicial system. The criminal law amendment eight of this special provision, blocked the shortcut may. Obviously, this paragraph second is taken "retroactivity" principle. Because the criminal law is taken from the doctrine, including security behavior concept of freedom. As an exception, here is considering the essence of the purpose of criminal law, criminal responsibility to offend consistent in essence, to focus on the order maintenance concept.

 

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   Before the amendment of article fiftieth of criminal law: "sentenced to death with a suspension of execution, the execution period, if not intentional crime, after the expiration of two years, to life imprisonment; if there are major meritorious service, after two years, reduced to fifteen to twenty years in prison; if the intentional crime, verified, approved by the Supreme People's court, execution."

   The revised article fiftieth of the criminal law second:"To be sentenced to death with a two-year suspension of execution, a criminal element sentenced to recidivism of death sentence with a reprieve for intentional homicide, rape, robbery, kidnapping, arson, explosion, dissemination of hazardous substances or organized violent crime, the people's court according to the circumstances of the crime and so can also decided on the commutation limit."　

   

 

    Article thirdWas sentenced to the punishment, punishment is finished or pardon, in April 30, 2011 before making should be sentenced to the punishment of sin, whether the recidivist, apply the provisions of article sixty-fifth of criminal law amendment of the former crime; but, when under the age of eighteen, whether the recidivist, the revised criminal law shall apply to the sixty-fifth strip.
   Had committed crimes of endangering national security, the punishment has been completely executed or pardon, in April 30, 2011 before make the crime of endangering national security, whether the recidivist, apply the provisions of article sixty-sixth of the criminal law amendment before.
   Was sentenced penalty above, or had committed crimes of endangering national security, terrorism, organized crimes of the underworld crime again, after May 1, 2011, whether the recidivist, shall be governed by the provisions of article sixty-fifth of criminal law, the revised article sixty-sixth.

 

    This article in view of the application of adjusted recidivism. Criminal law amendment eightTo be lenient to the minor crime,Enlarging the range of special recidivism, increase the intensity of the terrorism crime, the crime of the underworld organization punishment, from here we found the criminal policy. This is a major characteristic of China's criminal legislation, the continuous development and adjust the penalty with the society. In the minors of tolerance, take the principle of lighter punishment.

 

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   Before the amendment of article sixty-fifth of criminal law: "a criminal element sentenced to fixed-term sentence or more severe punishment, punishment is finished or pardon, within five years shall be sentenced to more than make a punishment of sin, is a recidivist, shall be given a heavier punishment, but negligence crime except.
The deadline stipulated in the preceding paragraph, the offender paroled, counted from the date the parole expires"

   The revised article sixty-fifth of the criminal law:"A criminal element sentenced to fixed-term sentence or more severe punishment, punishment is finished or pardon, within five years shall be sentenced to more than make a punishment of sin, is a recidivist, shall be given a heavier punishment, but the error crime and under the age of eighteen crimes except.

   The deadline stipulated in the preceding paragraph, the offender paroled, counted from the date the parole expires."

   Before the amendment of article sixty-sixth of criminal law: "the crime of endangering national security in the penalty is finished or pardon, at any time to commit the crime of endangering national security, are to be treated as recidivists."

   The revised article sixty-sixth of the criminal law:"The criminal crimes of endangering national security, terrorism, organized crimes of the underworld, the penalty is finished or pardon, at any time to make any of such crimes, are to be treated as recidivists."

 

   

   

     Fourth 2011 years before April 30th crime, though not with the plot, but confess, shall be governed by the provisions of article sixty-seventh of criminal law amendment after the third paragraph.

   

    This article according to the confession,The further implementation of the criminal policy of leniency to those who confess. This is the embodiment of a lighter principle.

 

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    The revised article sixty-seventh of the criminal law third:"The suspect is not with the provisions of the preceding two paragraphs plot, but confess, may be given a lighter punishment;Because of its truthfully confessed their crimes, to avoid serious consequences occur, can reduce the punishment."

    

 

 

    Fifth 2011 years before April 30th, crime, crime after the surrender and major meritorious services, shall be governed by the provisions of article sixty-eighth of criminal law amendment of section second.

 

   This article is aimed at the surrender and significant meritorious act. Criminal law amendment eight delete the provisions. This is a big change, possible reason is the criterion for sentencing.

 

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   The second paragraph sixty-eighth of the criminal law amendment before: "crime after the surrender and major meritorious services, shall be reduced or exempted from punishment."

 

 

 

 

     Sixth 2011 years before April 30th, a committed several crimes, crimes provisions shall, before the amendment to article sixty-ninth of the criminal law; in April 30, 2011 and a committed several crimes, one crime occurred after May 1, 2011, shall be governed by the provisions of article sixty-ninth of the criminal law amendment.

 

   This oneExtend a punishment prison sentence,In practice there are some criminals a person has more crime, was sentenced to the sum of the sentence is higher, if only sentenced to a maximum of twenty years, it is difficult to reflect the criminal law principle of suiting punishment to crime, appropriate to improve this situation in punishment in prison cap. It is said that since April 30, 2011, the highest punishment in prison for 25 years.

 

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    Before the amendment of article sixty-ninth of criminal law: "sixty-ninth before the judgment is pronounced a committed several crimes, except sentenced to life imprisonment and death, should be above the maximum total term following, several sentences, as appropriate, decided to be executed, but the regulation of maximum of not more than three years, criminal detention of not more than one year, period the maximum not more than twenty years in prison.
If the number of crimes in a supplementary punishment is imposed, the supplementary punishment shall still be executed."

   The revised article sixty-ninth of the criminal law: "before the judgment is pronounced a committed several crimes, except sentenced to life imprisonment and death, should be above the maximum total term following, several sentences, as appropriate, decided to be executed, but the regulation of maximum of not more than three years, criminal detention of not more than one year, are to be sentenced to not less than thirty-five years the total sentence the highest, not more than twenty years, the total sentence of thirty-five years or more, the maximum not more than twenty-five years. 　

"Crime is a supplementary punishment is imposed, the supplementary punishment shall still be executed, which combined to perform additional penalties of the same kind, different kinds of, respectively, the execution."

 

 

 

    Seventh 2011 years in April 30th before the crime, was sentenced to life imprisonment, after commutation or parole before the actual implementation of the sentence, application of article Seventy-eighth of the criminal law amendment before the second paragraph, eighty-first paragraph 1.

 

  This article is aimed at the actual implementation of the deadline for correction of criminal law, the reason is the old and light.

  

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    The second paragraph Seventy-eighth of the criminal law amendment before: "after commutation, the actual implementation of the prison, sentenced to public surveillance, detention, are to be sentenced to not less than the term originally decided, 1/2; sentenced to life imprisonment, not less than ten years."

    Before the amendment of article eighty-first of criminal law the first paragraph: "eighty-first, a criminal element sentenced to fixed-term sentence, the implementation of the above sentence sentence 1/2, a criminal element sentenced to life imprisonment, the actual implementation of more than ten years, he conscientiously observes prison regulations, accepts education and reform, demonstrates true repentance, parole and will not cause further harm to society may be granted parole."

 

 

 

    Eighth 2011 years before April 30th crime, because is a recidivist or intentional homicide, rape, robbery, kidnapping, arson, explosion, dissemination of hazardous substances or organized violent crime and was sentenced to ten years in prison, life imprisonment of criminals, after May 1, 2011 is still in prison, or on parole, before the amendment of article eighty-first of criminal law provisions of paragraph second; in April 30, 2011 before the crime, a criminal element sentenced to ten years in prison, life imprisonment for crimes of violence, after May 1, 2011 is still in prison, parole shall apply whether, after revising article eighty-first of the criminal law section second, third paragraph.

 

   This article in view ofImprove the parole provisions, strengthen the supervision and management of the applicable time range was paroled criminals.The criminals sentenced to death with a suspension of execution, the provisions of the people's court may decide not to have the commutation, on this part, given the severe punishment at the same time, the necessary approval procedures, but also to give way, to urge them to accept reform, plead guilty, through education into the new, so as to realize the purpose of penalty.

 

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   The second paragraph of the criminal law amendment before eighty-first: "if there are special circumstances, with the approval of the Supreme People's court, can not subject to the restrictions relating to the term executed."

   Article eighty-first of the criminal law amendment after the second paragraph, third paragraph:

    "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 sentenced to life imprisonment, without the possibility of parole.

　　"The parole of criminal decision, should consider its release on parole on the community impact."　

 

    To make a long story short, the judicial interpretation of the criminal law amendment eight time range, around from old and mitigating the principle, through our leniency, the protection of minors and a series of criminal policy, combined with the practical problems of current society.The above study is only a peephole view, if there are different opinions, hope the generous with your criticism.