General principles of criminal law (1) principle of a legally prescribed punishment for a crime: if the law expressly stipulates that it is a crime, it shall be convicted and punished according to the law; If the law does not clearly stipulate that it is a criminal act, it shall not be convicted and punished. (2) The principle of equality in the application of criminal law: anyone who commits a crime is equal in the application of the law. No one is allowed to have the privilege beyond the law. (3) Principle of Adaptability between Crime and Punishment: The severity of punishment should be compatible with the crimes committed by criminals and the criminal responsibilities they bear. The general principle of criminal law is a basic problem of criminal law, but the theoretical understanding of this problem is still "different"; The researchers have their own opinions and arguments, which are still going on, and no consensus has been reached. Generally speaking, the differences in understanding the general principles of criminal law mainly focus on what is the general principles of criminal law, the basis for the identification of the general principles of criminal law and the specific contents of the general principles of criminal law, among which the latter two are especially the focus of debate. In fact, the general principles of criminal law are still unclear today, which has an important relationship with the perspective of people studying this issue. The author believes that although the general principles of criminal law belong to criminal law, the focus of research should not be limited to the port of criminal law. If you want to see it clearly and conform to its true state, you must capture it in all directions and in multiple dimensions. Therefore, the author tries to make a detailed study of this issue from the perspectives of jurisprudence, criminal law and comparative study. I. Jurisprudence Discussion on the Basic Principles of Law Scholars at home and abroad have different views on the principles of law. According to the British jurist Walker's definition of this concept, the legal principle is that many legal reasoning is based on a universal principle, which is constantly and appropriately applied to cases that cannot be solved by special and specific rules or can not be completely and clearly solved. It can be seen that this is mainly from the perspective of law application. According to Blake's legal dictionary, legal principle is "the basic truth or principle of law, the comprehensive rule or principle that provides the basis or source for other rules, and the decisive rule of legal behavior, legal procedure and legal decision". Chinese scholars generally agree that "legal principle is the basic truth and principle of law, or a comprehensive principle or starting point that provides basis or origin for other legal elements". It is not difficult to see that legal principles reflect people's understanding and grasp of the basic laws of law, and also include people's pursuit of the universal value of law. This makes the legal principle have the characteristics of "low content clarity", very abstract, relatively stable and wide coverage. Moreover, because it grasps the basic law of law and pursues the universal value of law, it has the following basic functions: (1) It provides a basis for legal rules and concepts and has guiding significance for the formulation and understanding of legal rules. (2) It can be used as a basis for solving difficult cases. (3) directly as the basis of the trial. The essence of the above situation is that the content of legal principles is imposed on legislative and judicial activities. According to the general view of academic circles, legal principles can be divided into: (1) According to the differences in the basis of principles, legal principles can be divided into policy principles and public rational principles. A policy principle is a general plan made by a country for a goal or goal that must be achieved, or for a certain period or a negative task, usually about the development goals, strategic measures or social mobilization of social economy, politics, culture and national defense. The principle of public reason is a legal principle, which comes from the essence of social relations and is recognized as a legal public principle. This is the most common meaning of legal principles. (2) According to the different coverage of principles, it can be divided into basic legal principles and specific legal principles. The basic legal principle is the legal principle that embodies the fundamental value of law and is the guiding ideology and starting point of the whole legal activity. Specific legal principles are the concretization of basic legal principles and constitute the basis or starting point of legal rules in a certain legal field. (3) According to the different contents of legal principles, legal principles can be divided into substantive legal principles and procedural legal principles. The principle of substantive law refers to the principle of stipulating substantive legal issues, and its function is to adjust the relationship between substantive rights and obligations. Procedural legal principle is the principle of procedural issues and has the function of adjusting procedural rights and obligations. Of course, legal principles can be classified according to different standards (such as different legal departments), and so on. Here it is. What we need to analyze are the two basic concepts of legal principle and basic legal principle, that is, what kind of relationship exists between them. Legal principle is a comprehensive and stable principle and criterion that constitutes the basis or source of legal rules, and it is one of the basic elements of law. Obviously, the principle of law is based on "law" rather than "departmental law", so it belongs to the whole field of macro law and can be said to be the basis of all laws. In this sense, there is no problem between legal principles and basic legal principles, because it is the most basic in itself, and the word "basic" will not add any new meaning. Generally speaking, the so-called basic legal principles are relative to specific legal principles. However, as far as the current theoretical understanding is concerned, in fact, there is a widespread problem of confusing legal principles with basic legal principles, and even when explaining the meaning of this concept, it is vague. The so-called "legal principle that embodies the fundamental value of law" and "the most basic criterion on which social relations are adjusted" cannot clearly explain the connotation and extension of this concept, let alone determine it. In fact, the basic principles of law and the principles of law cannot be treated equally. Strictly speaking, the research background of basic jurisprudence and jurisprudence is very different. Generally speaking, the basic principles of law are terms used in inquiries of specific legal departments, so there are "general principles of criminal law" and "basic principles of civil law". It is also based on this that this concept has the relative concept of "concrete jurisprudence", because there is no concrete jurisprudence at all in the macro, that is, in the abstract background. This is the most striking difference between the two. In addition, there are obvious differences in the adjustment scope between the two, and the scope of legal principles is obviously greater than the basic legal principles; In terms of stability and abstraction, the latter is obviously inferior to the former. However, these two different concepts are not completely unrelated, and * * * is related to personality. First, the principle of leaving the law and the basic legal principles cannot exist. Because the basic legal principle is the existing form of legal principle in departmental law; Similarly, without the basic legal principles, legal principles are empty talk, because legal principles exist in the legal field, which is precisely the deeper induction and refinement of people's legal understanding of various departmental laws, and departmental laws are the carrier of their existence. Secondly, there are some similarities and differences in the scope of their functions, that is, in many cases, both of them rely on the concepts and rules of law to have an impact on social life. Third, in the process of law application, legal principles will help or affect the application of basic legal principles; And in some cases, the basic legal principles are the application of legal principles. 2. Probe into 1 in the general principles of criminal law. What is the general principle of criminal law? Scholars have different views on this issue. Some scholars believe that the general principles of criminal law "are possessed by criminal law itself and run through criminal law from beginning to end, and are the overall and fundamental norms that criminal law must generally follow"; Some scholars also believe that the general principles of criminal law are "a norm that runs through all criminal law norms, has the significance of guiding and restricting all criminal legislation and criminal justice, and embodies the basic spirit of China's criminal legal system"; Some people define the general principles of criminal law as "norms or guidelines that must be followed correctly and scientifically in criminal legal activities, run through the whole process of criminal legal activities, reflect the laws of criminal legal activities and have universal guiding significance" or "principles that must be strictly observed in the process of formulating and applying criminal law". Among the above viewpoints, there is no difference in principle except that the third viewpoint focuses on the interpretation from the perspective of legal application. In fact, it is only a concrete expression of whether it is sufficient and comprehensive. Therefore, the author intends to supplement the above viewpoint and define it as: general principles of criminal law is the fundamental criterion that runs through formal legal norms and criminal legal activities. It is not difficult to see that the definition of the general principles of criminal law is different because people have doubts about the standards established by the general principles of criminal law. As mentioned above, the basic legal principles are the embodiment of legal principles in legal departments, so they can only be unique to departmental laws; It is different from specific legal principles, so it is more abstract and profound; Legal principle is the result of understanding and grasping the basic laws and universal values of law, so it must be the product of consciously grasping the basic laws and universal values of departmental law, so it has fundamental and overall significance and will have a fundamental and overall impact on the formulation and application of legal norms. Specifically, the general principles of criminal law must have the following fundamental characteristics: (1) is unique to criminal law and not shared by many departmental laws, otherwise it does not belong to the general principles of criminal law. (2) The general principles of criminal law are the fundamental principles of criminal law and the fundamental basis of criminal legal activities. (3) It runs through all criminal legal norms and the overall situation of criminal legal activities, guiding the whole criminal law legislation and judicial activities. (4) It is the fundamental value pursuit of summing up the law in the field of criminal law, and it does not belong to a specific phenomenon or a certain activity law. People should pay special attention to the fact that the above characteristics of the general principles of criminal law are organically related and cannot be viewed in isolation or biased. All the requirements must be met before it can be used as a criterion, otherwise it cannot be regarded as the basic principle of criminal law. So, what does the general principles of criminal law contain? According to the point of view of the legal circle, the principles of legality, equality before the law, and adaptability between crime and punishment seem to have become the public opinion of the general principles of criminal law. Some scholars also put forward the principle of self-responsibility, the principle of unity of subject and object, the principle of combination of punishment and education, and the principle of individualization of punishment as the necessary contents of the general principles of criminal law. In my humble opinion, although most academic circles agree with the first three contents of the General Principles of Criminal Law, academically speaking, they do not. Because scholars finally admit the application of the principle of equality in criminal law, many of them fall into "jurisprudence" on the grounds of the provisions of criminal law. From the perspective of academic research, although this content has been stipulated as a basic principle in China's criminal code, its problems are still obvious. Judging from its meaning, the principle of equality before the law is obviously the result of stripping out the basic principles of the constitution and putting them into criminal law. Although its long-term application shows that its existence is beneficial to the development of criminal law and can be regarded as a basic point of criminal law, it is rash after all. From the legal point of view, it does not conform to the legislative science and should not be encouraged. According to the author, if it is changed to "equal application of criminal law", criminal law may be more acceptable. The author would like to make a tentative analysis as to whether the principle of criminal law is self-responsibility, the unity of subjective and objective, the combination of punishment and education, and the individualization of punishment. The meaning of self-reproach is that the undertaker of criminal responsibility can only be the actor himself, and innocent people cannot be implicated. For this principle, we can make a concrete analysis according to the requirements of the general principles of criminal law. Let's see if it runs through criminal law norms and criminal judicial activities. Usually, if a principle exists in the criminal law norms, it will play a role in the whole judicial activities, because criminal judicial activities must follow the provisions of the criminal law norms, but it is obviously impossible to transpose the two; In other words, the role played in judicial activities does not necessarily play such a role in criminal law norms, because the relationship between them is one-way and irreversible. From the perspective of jurisprudence, the basic elements of criminal law are naturally nothing more than criminal law rules, principles and concepts. If a principle is carried out in the whole process of criminal law norms, it will inevitably have an impact on criminal law rules in all aspects, that is, from the premise, behavior mode and legal consequences; Therefore, it is not difficult to understand that the general principles of criminal law must also be applied to ordinary citizens and legal persons, that is, ordinary "people" regardless of their age and capacity, and it does not measure "guilty people". Taking this as a rope ink, it is not difficult to see that guilt cannot be satisfied. Because remorse only involves negative legal consequences, that is, "sin", and does not involve the opposite aspect, that is, positive legal consequences; And only for those who are found guilty, otherwise it is not "conceited", that is, if this "person" is a person with no capacity for behavior and so on. This "principle" is not involved, because people with incapacity will not be punished in many cases, so it is not strange to say anything, and so on. Some people think that self-responsibility is the principle that runs through the whole process of law application. According to the author, even this view is incorrect. Because in many cases, the "guilt" of the judgment can also be borne, such as the convicted party with terminal illness or pregnant women. In other words, even the whole process of law application will be absent, so what is the word basic? Following the same line of thought, the author thinks that the combination of punishment and education is actually "only fully reflected in non-penalty measures and provisions on sentencing and execution." In other words, it only has local meaning rather than fundamental meaning, and it has neither the reality endowed by positive law nor the content of conceptual law, so it is not necessary. It is actually a judicial policy, which, like the policies of "careful killing" and "two less and one wider", has no overall significance. Not basic. Individualized punishment can also make the same "judgment". For the meaning of this concept, some scholars think that "it means that judges should fully consider the personal danger of criminals, that is, the possibility of recidivism, when applying penalties." "According to the criminal's personal danger, different penalties are applied to achieve the purpose of reforming and educating criminals and realizing special prevention of punishment. Because the personal danger of the offender, that is, the possibility of recidivism, depends on the' personal situation' of the offender in all aspects, in order to correctly apply the penalty, it is necessary to conduct a' personal investigation' of the offender, that is, to investigate the' personal situation' of the offender's personality, physical and mental status, situation, experience and education level. " Later, it was suggested that individualization of punishment "refers to a system that gives individual treatment according to the criminal's personal danger, that is, the possibility of recidivism and the needs of social life, that is, the execution of punishment must be given different punishment and reform methods according to the criminal's age, gender, personality characteristics, physical condition, crime nature, crime severity and personal danger." In a word, it can even be regarded as the evolution or branch principle of the principle of adapting crime to punishment. The unity of subject and object is still worth discussing. "China's criminal law, from the concept of crime to the principle of crime constitution, from the stipulation of crime constitution to the stipulation of crime form, from the judgment and disposal of social exclusion behavior to the sentencing and execution of criminals, embodies the basic requirements of subjective and objective consistency. Opposing subjective or objective imputation is also the result of criminal justice moving from ignorance to scientific civilization, which is not only the natural result of pursuing criminal rule of law, but also the inevitable result of realizing criminal rule of law." It is easy to know that it basically meets the above requirements; Therefore, it is still necessary to discuss this principle because it is difficult to get rid of the suspicion of extending the principle of "adapting crime to punishment". Therefore, I dare not make a decision. 2. Next, the author intends to discuss the principles discussed above in depth by comparison. From the legal system, criminal law belongs to specific department law, while constitution belongs to fundamental law; Criminal law is also a category of public law and can be compared with civil law in the category of private law. Therefore, the following author will make a comparative analysis from two aspects: the general principles of criminal law and the basic principles of constitution, and the basic principles of criminal law and civil law. Comparison between the general principles of criminal law and the basic principles of the constitution: a brief introduction to the basic principles of the constitution; The principles of people's democracy, basic human rights and the rule of law have become the common principles of constitutions all over the world; Therefore, this article will only discuss them. The principle of people's sovereignty, also known as the principle of sovereignty in the people, originates from the theory of "sovereignty in the people" advocated by bourgeois enlightenment thinkers, which holds that all state power belongs to the people, not to the monarch or sovereign God-given. In the modern sense, sovereignty belongs to the people, which is not only aimed at the meaning of theocracy and monarchical power, but also a further development of the theory of people's sovereignty. Determining that the people are the source of power is an affirmation of the fundamental status of the people. The principle of basic human rights is evolved from the theory of "natural human rights" of western enlightenment thinkers, which mainly emphasizes that people have inalienable rights such as survival, development, property rights, freedom and resistance to oppression. The principle of rule of law, also known as the principle of constitutional supremacy, was born in the process of bourgeois opposition to absolute monarchy. Its main content is that everyone is equal before the law, and the unequal legal treatment of human personality and basic rights based on privilege and special status is abandoned. In today's society, this principle is more developed and enriched, which has the supreme significance of law. Comparison between the two First, natural comparison. In nature, the basic principles of the Constitution are more fundamental, political and superior. Because the basic principle of the constitution is the cornerstone of the construction of the fundamental law of the country, it is more fundamental and can be regarded as the roof of the legal system of a constitutional country; However, the general principles of criminal law are only the fundamental norms of criminal law departments stipulated by the Constitution, and there are obvious hierarchical differences between them. On the other hand, the constitution is the basis and blueprint for determining the national political system, democratic system and civil rights system, and its basic principles play an all-round role, so it has a very strong political color; The general principles of criminal law are certainly not as good as other principles. Furthermore, the basic principles of the constitution summarize the general and fundamental requirements of a country and society, and the formation, development and even function of the general principles of criminal law must undoubtedly be followed. This shows that, in comparison, the principle of constitutional advancement is better. In addition, the general principles of criminal law can be used as a reference standard for a certain behavior or a series of behaviors of the doer in the application of criminal law, and then restrain his behavior; The basic principles of the constitution often do not directly affect people's general activities, mainly because the basic principles of the constitution are mostly related to the fundamental problems in the adjusted social relations. Secondly, the comparison of effectiveness. The difference between the two effects is extremely obvious. Legally speaking, validity refers to the scope and degree of the legal system's binding role on the social relations it adjusts. As the fundamental law of the country, the constitution has an unusual position because of its important and strict adjustment of content and formulation process, which makes the basic principles of the constitution as its fundamental content and guiding principle have a similar position, so the formulation and implementation of laws in other departments must take it as the fundamental criterion. As an important part of departmental law, the scope and degree of the general provisions of criminal law are far less than the former. Therefore, from the perspective of effectiveness, the basic principles of the constitution are obviously much greater. Third, functional comparison. The function of law, that is, the ability of law to do work, is the inherent function and efficiency of law that is beneficial to society and belongs to a possibility. Compared with the general principles of criminal law, first, the function of the basic principles of the Constitution is generally single, that is, the function of general principles of criminal law usually has the function of protection or guarantee, and generally does not cause damage. For example, people's sovereignty, basic human rights and the rule of law generally play a role in ensuring that state power belongs to the people, protecting citizens' basic personal and property rights and ensuring the realization of the rule of law. However, the basic principles of criminal law have dual functions. Its realization may not only protect the legal rights of one party, but also damage the rights of the other party. For the same party, there will be both positive and negative consequences. Secondly, in the realization of functions, the basic principles of the Constitution mainly resort to legislation, while the general principles of criminal law can take legislation as the path and justice as the path; In addition, the basic principles of the constitution can be injected into other departmental laws to realize its functions, while the general principles of criminal law cannot. Third, there are differences in macro results between them. Most of the basic principles of the constitution involve important parts of social life, so its function and effectiveness are also important, and once its influence on social life is realized, it will be an important consequence; Generally speaking, the general principles of criminal law are not as good as the fundamental aspects and extremely important fields of society, so its social effect is not as good as the former. Finally, the comparison of values. From the perspective of legal philosophy, value is the benefit of the object (such as legal principles) relative to the subject (mainly people) and the resulting evaluation. In other words, it is the subject's understanding and pursuit of the usefulness of the object. In contrast, first, the value orientation of the basic principles of the Constitution is more class-oriented, and different classes control the political power, so their goals and values are most easily infiltrated in the creation and adoption of the basic principles of the Constitution; The general principles of criminal law are far from clear here, which is the proof that preventing and cracking down on crimes has no borders, and it can be said that it is the purpose of human understanding and concept. Second, in the value system of the basic principles of the Constitution, democracy, freedom and equality are in a fundamental position, which are the origin and destination of other value goals, and unanimously reflect the trend of restricting state public power; In the general principles of criminal law value system, order, justice and humanity are in the first place, and public power is made public, which highlights the importance of public power in a series of activities such as legislation, trial and sanctions, while other value goals belong to these two aspects. Third, the basic principles of the constitution mainly emphasize the universal value of the constitution. The concepts of value subjects such as "people" and "citizens" mentioned in the basic principles of the Constitution are very abstract, that is, their extension is a collection or all the people, which is used in the sense of legal philosophy and filters the individual characteristics of the people; The general principles of criminal law cannot be used as a value compass, because the general principles of criminal law are interlinked with application, and application is a process of dealing with specific cases and specific actors. Therefore, we must pay attention to distinguish the specific differences between people in all aspects, and get the values of fairness and justice from them. However, although the basic principles of the Constitution, as a legal principle, are different from the general principles of criminal law, they are also compatible in many aspects, that is, they are the basic norms of their respective departmental laws and both embody the legal principles; In addition, as the fundamental law of the country, the basic principles of the constitution will inevitably play a role in the emergence, development and evolution of the general principles of criminal law in general departmental laws. From the perspective of the general principles of criminal law, the general principles of criminal law react on the former; But it is necessary for the latter to follow the former. From the above comparison, it is not difficult to see that the basic principles of the constitution and the general principles of criminal law are significantly different in nature, effectiveness, function and value. While recognizing their relationship, we should pay necessary attention to the determination and application of the general principles of criminal law.