Section one: the spatial effect of criminal law
I. Overview of the spatial effect of criminal law
The spatial effect of criminal law refers to the effect of criminal law on land and people, which actually solves the scope of criminal jurisdiction. Because the spatial effect of criminal law involves the scope of national criminal jurisdiction, it is also related to safeguarding national sovereignty and coordinating international relations. The criminal laws of all countries attach great importance to the provisions of space effect and form some important principles in solving the problem of space effect. Judging from the criminal law provisions and theoretical propositions of various countries, there are mainly the following principles: (1) Territorial principle, that is, taking the region as the standard, all crimes committed in China, whether domestic or foreign, are subject to domestic criminal law; On the contrary, the country's criminal law does not apply to crimes committed abroad. This principle is based on the principle of national sovereignty. (2) The principle of personality, that is, taking the nationality of the offender as the standard, the criminal law of this country is applicable to all crimes in China, regardless of whether the crime occurs inside or outside the country; On the other hand, if a foreigner commits a crime, that is, it happens in his own territory, his own criminal law is not applicable. This principle is based on the fact that citizens should ensure their loyalty and obedience to their own laws. (3) the principle of protection, that is, to protect the national interests as the standard, apply the national criminal law to anyone who infringes on the national or ethnic interests, regardless of whether the perpetrator is a national or not, and regardless of whether the crime is committed within or outside the country. The essence of the principle of protection is that the state uses criminal law to protect the interests of itself and its citizens from foreign aggression. (4) the principle of universality, that is, taking the protection of the common interests of all countries as the standard, whenever a crime violates the common interests of all countries stipulated in international treaties, regardless of whether the perpetrator is a native or a foreigner, and whether the crime is committed within or outside the country, the criminal law of the country is applicable.
The above principles are reasonable in isolation, but they also have their limitations. In the modern world, most criminal laws are based on the principle of territoriality and adopt other principles. So is our criminal law.
Second, the territorial jurisdiction of China's criminal law
Article 6, paragraph 1, of the Criminal Law stipulates: "This law shall apply to all crimes committed in People's Republic of China (PRC), unless otherwise provided by law." This is the basic principle of our criminal law on the spatial effect of criminal law. "Territory" here refers to all areas in China, including territory, territorial sea and airspace. According to international treaties and practices, the following two parts belong to the extension of China's territory and are subject to China's criminal law: (1) China's ships or aircraft. The second paragraph of Article 6 of China's Criminal Law also stipulates: "This law is also applicable to anyone who commits a crime on a ship or aircraft in People's Republic of China (PRC)." Ships or planes here can be used for civilian or military purposes when they are sailing or berthing, sailing or berthing in China, or sailing or berthing in foreign countries or on the high seas. (2) In China's embassies and consulates abroad. According to the 196 1 Vienna Convention on Diplomatic Relations, the embassies and consulates of various countries abroad are not under the jurisdiction of the host country, but under the jurisdiction of their own countries.
The so-called "special provisions of the law" mainly refers to: (1) Article1of the Criminal Law stipulates that the criminal responsibility of foreigners who enjoy diplomatic privileges and immunities shall be resolved through diplomatic channels. The so-called diplomatic privileges and immunities refer to a special right and treatment granted by a country to ensure its diplomatic representative offices and their staff to perform their duties normally. The contents of diplomatic privileges and immunities are very extensive, one of which is that "diplomatic representatives enjoy criminal immunity and are not subject to the jurisdiction of the host country". This privilege is granted to countries with diplomatic relations on the basis of mutual respect and equality. Of course, if some of them commit crimes in our country, we can't sit idly by. However, according to the criminal law, we can't search, detain or arrest them, and we can only solve their criminal responsibility through diplomatic channels. For example, you can ask the sending country to recall, or suggest that the sending country handle it according to law; For those who commit serious crimes, they can be declared persona non grata by the government and leave the country within a certain period of time. This provision in article 1 1 of the new criminal law not only safeguards China's sovereignty and legal dignity, but also respects the countries concerned, which is conducive to coordinating China's normal diplomatic relations with other countries. (2) Article 90 of the Criminal Law stipulates that "if the provisions of this Law cannot be fully applied in ethnic autonomous areas, the people's congresses of the autonomous regions or provinces may formulate flexible or supplementary provisions according to the political, economic and cultural characteristics of the local ethnic groups and the basic principles stipulated in this Law, and report them to the NPC Standing Committee for approval and implementation". When understanding this exception, we should pay attention to the following points: First, the restrictions on effectiveness of the criminal law in minority areas are different from diplomatic privileges and immunities. The application of criminal law is not completely excluded, but only a part of it, that is, the part related to the special customs and habits of ethnic minorities, religious and cultural traditions, such as underage bigamy, rape of young girls, fighting, gathering people to disturb the order of public places, destroying property and so on. This amendment or supplementary provision is only a small part compared with the full text of the criminal law. Therefore, on the whole, criminal law is basically applicable to minority autonomous areas. Second, the exemption from the application of the criminal law must have a clear legal basis, that is, the state organs of the autonomous region or province shall formulate flexible or supplementary provisions and report them to the National People's Congress Standing Committee (NPCSC) for approval. Third, the adaptation or supplementary provisions formulated by ethnic minority areas cannot contradict the basic principles of criminal law. (3) the provisions of the special criminal law formulated by the national legislature after the implementation of the current criminal law. After the implementation of the current criminal law, it is still necessary for the national legislature to formulate separate criminal law and subsidiary criminal law norms according to actual needs, or to modify and supplement the criminal code in the form of amendments. If the provisions of these special criminal laws and criminal law amendments overlap or conflict with the provisions of the new criminal law, the principle of "special law is superior to common law" should be adopted. (4) Exceptions made by the basic laws of the Hong Kong Special Administrative Region and the Macao Special Administrative Region. Due to political and historical reasons, China's effectiveness of the criminal law cannot reach Hong Kong and Macao, which is a factual restriction on the territorial jurisdiction of criminal law. For example, according to Article 18 of the Basic Law of the Hong Kong Special Administrative Region, which was implemented in July 1997, "national laws shall not be implemented in the Hong Kong Special Administrative Region except those listed in Annex III of this Law." The Criminal Law is not among the laws listed in Annex III. The Basic Law of the Macao Special Administrative Region has similar provisions. However, according to the provisions of the two Basic Laws, when the National People's Congress Standing Committee (NPCSC) decides to declare a state of war or Hong Kong and Macao Special Administrative Regions enter a state of emergency because of uncontrollable turmoil that endangers national unity or security, the Central People's Government may issue an order to implement relevant national laws in Hong Kong and Macao Special Administrative Regions.
The third paragraph of Article 6 of the Criminal Law stipulates: "If one of the acts or results of a crime occurs in the territory of People's Republic of China (PRC), it is considered as a crime in the territory of People's Republic of China (PRC)." According to the special situation of isolated criminals, this paragraph clearly stipulates the specific standards of territorial jurisdiction. There are three kinds of situations involved here: (1) both criminal acts and criminal results occur in China; (2) The crime was committed in China, but the result of the crime occurred abroad; (3) The crime was committed abroad, but the result of the crime occurred in China. For the above three situations, China's criminal law should be applied.
Third, the personal jurisdiction of China criminal law.
Article 7 of the Criminal Law stipulates: "This law shall apply to China citizens who commit crimes stipulated in this law outside the territory of People's Republic of China (PRC), but if the maximum penalty stipulated in this law is fixed-term imprisonment of not more than three years, they may not be investigated. This Law shall apply to state functionaries and servicemen of People's Republic of China (PRC) who commit crimes stipulated in this Law outside the territory of People's Republic of China (PRC). " This article is the provision of personal jurisdiction in China's criminal law. According to the above provisions, if a citizen of our country commits a criminal act stipulated in our criminal law outside our country, whether it is recognized as a crime according to local laws or whether the criminal act infringes on the interests of any country or citizen, in principle, our criminal law shall apply. Only according to the provisions of China's criminal law, if the maximum legal penalty for the crime committed by the citizen is fixed-term imprisonment of not more than three years, it may not be investigated. The so-called "can't be investigated" is a tendency to show that it will not be investigated. It is not absolutely not to investigate, but to reserve the possibility of investigation. You can also investigate if necessary. However, if our country's state functionaries and servicemen commit crimes abroad, regardless of whether the legal maximum penalty for their crimes is fixed-term imprisonment of less than three years, our criminal law will be applied to investigate their criminal responsibility. This is mainly because these two types of personnel have special identities representing the national image and shoulder special responsibilities, and their work is closely related to the national interests. Therefore, strict requirements should be put forward for the jurisdiction of national staff and soldiers who commit crimes outside the country (territory).
As for the personal jurisdiction of China's criminal law over foreign countries, Article 10 of the Criminal Law further stipulates that if a crime is committed outside China and should be criminally liable according to the Criminal Law, it can still be handled according to China's criminal law even after a foreign trial. This shows that China's legal independence and national sovereignty are free from interference, and foreign trials are not binding on China. However, from the perspective of practical rationality and international cooperation, in order to avoid the defendant from being severely punished, this article also stipulates that those who have already received criminal punishment in foreign countries can be exempted or mitigated. This not only safeguarded national sovereignty, but also realistically considered the specific situation of the defendant from a humanitarian perspective, reflecting the unity of principle and flexibility.
Fourthly, the protection jurisdiction of our criminal law.
Article 8 of the Criminal Law stipulates: "If a foreigner commits a crime against People's Republic of China (PRC) countries or citizens outside the territory of People's Republic of China (PRC), this law can be applied if the minimum penalty stipulated in this law is fixed-term imprisonment of more than three years, except those who are not punished according to the laws of the place where the crime is committed." This article is a provision on judicial protection in China's criminal law. According to this regulation, foreigners commit crimes against our country or our citizens outside our country, and our criminal law has jurisdiction to protect the interests of our country and our citizens, but there are the following restrictions: (1) Crimes committed by foreigners must infringe on the interests of our country or our citizens. (2) According to China's criminal law, the minimum penalty for a foreigner to commit a crime must be fixed-term imprisonment of more than three years (not applicable to misdemeanors with fixed-term imprisonment of less than three years). (3) Foreigners who commit crimes should also be punished according to the law of the place where the crime is committed (punishment according to the law of the place where the crime is committed is not applicable). Of course, it will be difficult to actually exercise jurisdiction in this respect, because the criminal is a foreigner and the crime place is outside the country. If China wants to exercise its jurisdiction, it needs to extradite criminals, and it involves conflicts with the jurisdiction of the country where the crime was committed, so there are many practical difficulties. However, if the criminal law does not provide for this, it is equivalent to giving up their jurisdiction, and those foreigners who commit crimes can arbitrarily infringe on the interests of our country or citizens. China must show its legal position, which is conducive to safeguarding national interests and protecting the interests of our overseas staff, visitors, overseas students and expatriates.
In addition, the provisions of article 10 of the criminal law are also applicable to the trial and punishment of foreigners who infringe on China's interests in China or abroad. That is, although it has been tried abroad, it can still be investigated in accordance with our criminal law; However, those who have already received criminal punishment in foreign countries may be exempted or mitigated.
Verb (abbreviation of verb) Universal jurisdiction of criminal law in China.
Universal jurisdiction is an important legal measure to effectively punish and prevent international crimes in modern international society, which is also clearly stipulated in Article 9 of China's Criminal Law. That is, "this law shall apply to crimes stipulated in international treaties concluded or acceded to by People's Republic of China (PRC), where People's Republic of China (PRC) exercises criminal jurisdiction within the scope of its treaty obligations." According to this provision, no matter whether the criminals are from China or foreigners, no matter whether the criminal acts occur in China or abroad, and no matter which country or citizen's interests are specifically violated, as long as the criminals are found in China, if they are not extradited to the relevant countries, they should exercise criminal jurisdiction and punish the criminals according to China's criminal law. In China's criminal law, universal jurisdiction is limited by its scope and conditions, and can only be an auxiliary principle of the spatial effect of criminal law.
The establishment of the principle of universal jurisdiction is an inevitable requirement for China to participate in the fight against international crimes, to exercise its duty of defending the rights and interests of all mankind and to fulfill its obligations under international law. The object of universal jurisdiction is specific, that is, it is limited to crimes stipulated in international treaties concluded or acceded to by China, except for crimes covered by the provisions of relevant international treaties that China has declared reservations about. The principle of universal jurisdiction is a supplement and exception to the principles of territorial jurisdiction, personal jurisdiction and protective jurisdiction in criminal law. Only by excluding the principles of territorial jurisdiction, personal jurisdiction and protective jurisdiction can the problem of applying the principle of universal jurisdiction arise. In other words, if one of the principles of territorial jurisdiction, personal jurisdiction or protective jurisdiction can be applied to those who commit international crimes, there is no need to apply the principle of universal jurisdiction.
According to the provisions of China's criminal law, the application of China's criminal law according to the principle of universal jurisdiction must meet the following conditions: First, the crime being prosecuted is an international crime stipulated in international treaties concluded or acceded to by China. Secondly, the prosecution of crimes belongs to our treaty obligations. Third, the prosecuted crime occurred outside the territory of our country. If it happens in our country, our criminal law should be applied according to the principle of territoriality, and the principle of universal jurisdiction is not needed. Fourth, the offender must be a foreigner, including a stateless person. If the offender is a citizen of our country, our criminal law should be applied according to the principle of personality, without the principle of universal jurisdiction. Fifth, China's criminal law has explicit provisions on the prosecution of crimes. Sixth, criminals live or enter our country. Because only in this way can our country exercise criminal jurisdiction over criminals. Otherwise, there is no obligation to exercise universal jurisdiction, and there is no possibility of applying our criminal law according to the principle of universal jurisdiction.
Section 2 Time Effect of Criminal Law
The time effect of criminal law refers to the effective time and invalid time of criminal law, and whether it has retrospective effect on the behavior before the criminal law takes effect.
First, the effective time of criminal law.
There are usually two ways to stipulate the effective time of criminal law: one is to take effect from the date of promulgation; Second, it will be implemented after a period of time. The effective time of China's current criminal law belongs to the latter, because people are relatively unfamiliar with the new law; Through a period of publicity, study and research, it is convenient for the broad masses of people and judicial staff to make psychological, organizational and professional preparations for the implementation of the new law.
Second, the expiry time of criminal law.
The time when the criminal law expires is the time when its effectiveness ends, which shall be stipulated by the national legislature. There are two ways to invalidate China's criminal law: first, the national legislature explicitly declares some laws invalid; Second, it is a natural failure, that is, after the implementation of the new law, it replaces the old law with similar content, or because the original special legislative conditions have disappeared, the old law is automatically abolished.
Thirdly, the retroactivity of criminal law.
The retroactivity of criminal law refers to whether it is applicable to acts that have not been tried or judged before the criminal law takes effect. If applicable, it has retrospective effect; If not applicable, there is no traceability.
For the retroactivity of criminal law, countries adopt different principles, which can be summarized as follows; (1) From the old principle, that is, the criminal law has no retrospective effect on all acts before they take effect. (2) The new principle, that is, the new law is applicable to all acts that have not been tried or the judgment has not yet been determined before it takes effect, and it has retrospective effect. (3) the principle of light punishment for new crimes, that is, the new law has retrospective effect in principle, but when the old law (behavior law) does not consider it a crime or the punishment is light, it shall be handled according to the old law. (4) The old principle of lighter punishment, that is, the new law has no retroactivity in principle, but if the new law does not consider it a crime or the punishment is lighter, it shall be handled according to the new law.
The above principles, from the old to the light, not only meet the requirements of a legally prescribed punishment for a crime, but also meet the actual needs, and are adopted by most countries' criminal laws, and so are our criminal laws. Article 12 of China's revised Criminal Law stipulates: "The laws of that time shall apply to acts committed after the establishment of People's Republic of China (PRC) before the implementation of this Law, which are not considered as crimes at that time; If the law at that time considers it a crime and should be prosecuted in accordance with the provisions of Section 8 of Chapter IV of the General Provisions of this Law, criminal responsibility shall be investigated in accordance with the law at that time. However, if this Law does not consider it a crime or the punishment is relatively light, this Law shall apply. " According to this provision, acts committed after the establishment of People's Republic of China (PRC) in June 5438+0949 and before the revised Criminal Law came into effect in June 5438+0997 shall be handled as follows:
1. At that time, the criminal law did not consider it a crime, but now it is. Only the criminal law before the amendment can be applied, and the current criminal law has no retroactivity. In this regard, the criminal responsibility of the perpetrator cannot be investigated on the grounds that the new criminal law stipulates that it is a crime.
2. At that time, the criminal law considered it a crime, but now the criminal law does not consider it a crime. As long as this behavior has not been tried or the judgment has not been determined, the existing criminal law should be applied, that is, the existing criminal law has retrospective effect.
3. If both the then criminal law and the current criminal law consider it a crime, criminal responsibility shall be investigated in accordance with the provisions of Section 8 of Chapter IV of the current criminal law, and in principle, criminal responsibility shall be investigated in accordance with the then criminal law. This is the principle of being light from the old. However, if the punishment of the criminal law at that time was heavier than the current criminal law, the current criminal law would apply. This is the embodiment of the principle of lighter punishment.
4. If an effective judgment has been made according to the laws at that time, the judgment is still valid. Even if according to the provisions of the current criminal law, its behavior does not constitute a crime or the punishment is lighter than the criminal law at that time, it is no exception. Cases retried in accordance with the procedure of trial supervision shall be subject to the criminal law at that time. The retrospective application of criminal law to an act is limited to the case that the act has not been tried or has been tried but no effective judgment has been made; The effective judgment shall not be changed according to the provisions of the criminal law, so as to maintain the seriousness and stability of the effective judgment of the people's court.
When carrying out the principle of combining leniency with severity, it also involves how to apply the law to the continuous acts that span the old and new criminal laws. In this regard, Article 3 of the Notice on Amending the Specific Application of Article 12 of the Criminal Law made by the Supreme People's Procuratorate pointed out: For acts that occurred before September 30, 1997, 1997 has not been dealt with or is being dealt with after June 30, 1997, "If the laws at that time do not consider it a crime, but, If this behavior continues or continues after 1997 65438+1 0.65, the Supreme People's Procuratorate's Reply on How to Apply the Criminal Law to Similar Crimes after the Implementation Date of the Revised Criminal Law also points out: "For behaviors that started before1September 30, 1997 and1 Acts that continued or continued after June 30, 1997, and similar crimes committed around 1997 10/0 respectively, will continue to 1997 60 if the original criminal law and crimes started before September 30, 1997. 2. For continuous crimes that started before1September 30, 997 and ended after1October/9971October, or similar crimes committed around1June/997 10, the charges include However, if the revised criminal law is stricter than the constitutive requirements and circumstances stipulated in the original criminal law, or the statutory punishment is heavier, it should be put forward when public prosecution is initiated. Handle it lightly as appropriate. "
On the Effective Scope of Criminal Judicial Interpretation
Editor: Ling Yuexian Author: Song Source: China Paper Download Center Date: 2005- 10- 18
The scope of effectiveness of criminal judicial interpretation referred to in this paper is limited to the spatial and temporal effectiveness of criminal judicial interpretation in the sense of criminal substantive law.
As we all know, generally speaking, judicial interpretation does have the power of interpretation: once promulgated by the highest judicial organ, it has the same effect as the law. However, judging from the nature and effectiveness of judicial interpretation, it is not the same as the criminal law norm itself. The interpretation of criminal law usually has the following three functions: first, the interpretation of the connotation and extension of abstract legal concepts, in short, the concrete interpretation of abstract and summarized legal provisions and their contents; Followed by explanation (or answer, reply, etc. Whether the specific "legal facts" (that is, cases) identified by the judicial organs conform to a specific criminal law norm; Thirdly, the value of the whole criminal law system and its penalty purpose orientation are systematically expounded. [ 1]
In this sense, the above-mentioned first and second interpretations are mainly limited to the interpretation of criminal law norms and categories; The third explanation is about the criminal law axiology. In view of this, in practice, as a judicial interpretation of criminal law, it is mostly limited to the interpretation of the first and second matters; The third explanation, that is, the subject of legal value theory, is mostly the criminal law theoretical circle rather than the criminal practice department. Although the judicial department will also consider related issues with reference to the value orientation of the criminal law when interpreting the first and second items mentioned above, accurately speaking, the effectiveness of judicial interpretation mainly lies in explaining the specific content covered by the word meaning of a specific legal provision and the conformity of a case with a certain norm according to the relevant legislative intention and legislative meaning, combined with the objective meaning expressed by the relevant word meaning. It can be seen that the judicial interpretation of criminal law is not simply independent of specific and static criminal law. As far as its substantive significance is concerned, it should be said that it can only rely on the operation of effective criminal law. In other words, without the actual operation of criminal law, judicial interpretation has no real value and space. On this basis, in order to straighten out the effectiveness of criminal law interpretation, especially its relationship with the retroactivity of criminal law, it seems necessary to clarify the following basic issues of criminal law interpretation theory one by one:
Correctly understand the "equal effect" of judicial interpretation and law
Some people think that the effectiveness of criminal law includes two aspects: spatial effectiveness and temporal effectiveness, and since the judicial interpretation of criminal law has "equal effectiveness", it means that judicial interpretation and criminal law have "equal" spatial effectiveness and temporal effectiveness. In our opinion, this interpretation of "effectiveness" pays more attention to form than substance.
As we know, the spatial effect of criminal law refers to the question of where and to whom the criminal law applies. The "equal" effect here is obviously not relative to the applicable regions and personnel, but relative to the fact that its judicial interpretation has the same legal binding force and coercive force as the laws it interprets. In other words, the so-called "equality" here, the original purpose is to guide anyone who is bound by legal norms, including those who apply, enforce and abide by the law, to apply, enforce and abide by the law as meticulously as the criminal legal norms themselves, but not to neglect and slack off. In this regard, we can find through reverse reasoning that judicial interpretation does not have the same spatial effect as the law it relies on. This is because judicial interpretation can't be divorced from law and extraterritorial jurisdiction, and it can automatically apply to some people and things within a certain geographical scope, so it is difficult for judicial interpretation to exert its independent spatial effect. In other words, judicial interpretation can only follow the spatial effect of law and passively apply to some people and things within a certain range, unless a judicial interpretation has made special provisions on its scope of application (which does not violate the spatial effect of criminal law). For example, except for international crimes, the spatial effect of China's criminal law is invalid for harmful acts committed by foreigners (including stateless persons) outside China, but not for China countries or nationals. Therefore, judicial interpretation is impossible to start and take effect on such people, such things, and so on. It can be seen that in terms of spatial effect, there is no independent extra-legal basis for the existence of spatial effect in judicial interpretation.
Two. Debate on the Time Effectiveness of Judicial Interpretation of Criminal Law
The debate about the time effect of judicial interpretation of criminal law mainly focuses on whether this judicial interpretation has the retrospective effect of criminal law. As we all know, the retroactivity of criminal law refers to the question of whether the new law can be applied to the old behavior after the criminal law norms come into effect and before it comes into effect. If applicable, the new law has retroactivity; If it is not applicable, there is no retrospective effect. Nowadays, countries of continental law system in the world often make clear provisions on the retroactivity of criminal law in their general provisions of criminal law. For example, Article 2, paragraphs 2 and 3 of the German Criminal Code clearly stipulates that "if the penalty is changed at the time of the act, the law in force at the end of the act shall apply"; "If the law in force at the end of the act is changed before the judgment, the law with the lightest punishment shall apply". Article 12 of China's criminal law also clearly stipulates that acts committed after the establishment of People's Republic of China (PRC) before the implementation of this law are not considered as crimes, and the laws at that time shall apply; If the law at that time considers it a crime and should be prosecuted in accordance with the provisions of Section 8 of Chapter IV of the General Provisions of this Law, criminal responsibility shall be investigated in accordance with the law at that time. However, if this Law does not consider it a crime or the punishment is relatively light, this Law shall apply. Before the implementation of this law, the effective judgment made in accordance with the laws at that time shall remain valid. The above provisions of criminal law are generally called "the principle of combining leniency with severity" in the theoretical circle of criminal law.
Looking at the provisions on retroactivity in the criminal laws of the above-mentioned countries, including China, we can see that the provisions on retroactivity in the criminal law are: first, for the law; Second, in criminal law; Third, in terms of criminal substantive law. Otherwise, it cannot be called "retroactivity of criminal law".
However, in China, criminal law scholars or people in criminal practice departments sometimes question the retroactivity of criminal law interpretation. For example, on 7 February, 2006, 5438+0/KLOC-0, the Supreme People's Court and the Supreme People's Procuratorate issued the Provisions on the Application of the Time Effect of Criminal Judicial Interpretation, in which Article 2 stipulates that for acts that occurred before the implementation of judicial interpretation, if there was no relevant judicial interpretation at the time of the act, cases that have not been processed or are being processed after the implementation of judicial interpretation shall be handled in accordance with the provisions of judicial interpretation. Accordingly, some scholars believe that such a provision is tantamount to clearly stipulating that the judicial interpretation of criminal law has retrospective effect. Advocating that criminal judicial interpretation cannot be traced back to the past, those who have obviously made an expanded interpretation only have the function of evaluating their behavior after implementation in principle; I believe that if the retroactivity of legal interpretation is not properly resolved, the results of abolishing analogy will not be well consolidated. [2] Some scholars even suggested that the retroactivity principle stipulated in Article 12 of China's criminal law should also be applied to the interpretation of criminal law. [3]
Three. Whether the judicial interpretation of criminal law has retrospective effect.
We believe that the above scholars' original intention of insisting on a legally prescribed punishment for a crime and opposing the principle of severe punishment is of course good, but they think that the judicial interpretation of criminal law should not have retrospective effect, otherwise it will violate the principle of a legally prescribed punishment for a crime, which is a major misunderstanding of the retrospective provision of criminal law or the principle of a legally prescribed punishment for a crime. Here, we might as well discuss the following reasons from the aspects of legal basis, legal basis and interpretation effect:
First of all, from the perspective of legal provisions, as mentioned above, the provisions on retroactivity in various countries are aimed at the criminal "law" itself, not at the "interpretation" of the law. Although the judicial interpretation of criminal law has the same effect as the law, it is not equal to the law itself. This is also the main difference between judicial interpretation of criminal law and legislative interpretation of criminal law. Criminal legislative interpretation is often interspersed with criminal law provisions-for example, Articles 965438 +0 to 94 of the Criminal Law are legislative interpretations, but they are also part of the Criminal Law. In this sense, this legislative interpretation is actually an integral part of the criminal law (the interpretation of criminal legislation other than the criminal law is another matter). The judicial interpretation of criminal law is not the case. It is not a part of criminal law, but only a tool to assist the smooth implementation of criminal law and the operation of legal norms. Although in practice, due to the lack of norms in the current judicial interpretation of criminal law in China, it is called sub-law or quasi-law by some scholars. But in any case, as far as legislative law and criminal law are concerned, "interpretation" is not an integral part of "criminal law" itself. It can be seen that the so-called "this law" in Article 12 of the Criminal Law only refers to the "criminal law" and does not include the "interpretation" of the criminal law. Therefore, it is not appropriate to supplement the provision that judicial interpretation of criminal law should have retrospective effect with the provision of article 12 of criminal law. Specifically, it confuses the boundary between "criminal law interpretation" and "criminal law".
Secondly, from the retroactivity principle itself, the essence of this principle is that criminal justice cannot apply ex post facto law or heavy law. Its essence lies in prohibiting the application of "ex post facto law" and "heavy law" in order to effectively implement the principle of a legally prescribed punishment for a crime. Legal interpretation is a tool for the smooth implementation of legal norms, so it only has the question of whether the quality of the tool is legal, up to standard and should be dealt with, and there is no question of ex post facto or emphasizing the law-because it is not a "law" in the first place. In fact, in practice, most judicial organs will only ask the Supreme People's Court or the procuratorate to make a judicial interpretation on special issues after encountering criminal thorny or difficult issues. Only in this way, the criminal law only stipulates that retrospective laws shall not be applied in the judiciary, and it is impossible to formulate retrospective provisions that do not apply retrospective judicial interpretations. That is to say, from the perspective of criminal law, the judicial interpretation of criminal law is not the object of adjustment of Article 12 of the Criminal Law, so there is no question of whether the judicial interpretation has "retrospective effect". Of course, it is undeniable that in practice, the new judicial interpretation is likely to expand the circle of criminal law because of the latest interpretation of criminal law provisions such as "large amount" or "serious circumstances", which may lead to cases that have not reached the starting point in the past being included in the criminal circle. However, this superficial expansion does not necessarily lead to the consequences of attaching importance to the substantive significance of law. This is because "large amount" or "serious circumstances" are relative to a certain proportion of social harm, so the reduction or expansion of the face value of money is not simply equivalent to the reduction or increase of the actual value of money and its social harm.
It says here that the number of children is not completely limited.
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