Research On The Validity Of Time In Criminal Law

The validity of time in criminal law is a very important content of fundamental theory of the criminal law. The determination of it is the premise and basis of the conviction and measurement of penalty. And it affects the determination of criminal sanction and realization of penalty directly. Along with the study of criminal law, we found the controversy of the relevant criminal standpoints is obviously increasing. The dissertation tries to discuss the theory of the validity of time in criminal law, analyze and settle divergences among the theory of the validity of time, and interprets the standpoint of author in order to offer reference of the validity of time in the action of legislation and judicature. The dissertation tries to discuss the validity of time in both theoretic way and practical way. The whole dissertation is divided into five chapters:Chapter 1 analyses the theory and legislation of the validity of time in criminal law between the continental law system and the British and American law system employing the comparative research approach. At the same time, the dissertation analyses the condition of the theory and legislation of the validity of time in criminal law in our country. The scholars of the continental law system agree on the concept of the validity of time in criminal law, but they don't agree on the relation of the validity of time in criminal law and the principle of nullum crimen sine lege, nulla poena sine lege. At the same time, they support different standpoints in connotation of the retroactivity of criminal law. In addition, the scholars of criminal law in the continental law system don't attach importance to criminal law of coming into effect and losing effect. Look from the legislation of criminal law, the validity of time in criminal law is a very important question that only next to the principle of nullum crimen sine lege, nulla poena sine lege. On stipulation of retroactivity of criminal law, almost all of the countries adopt the principle of application of the old law with the exception of a less punishment in the new law, except Switzerland. But, on the stipulation of the middle law and the judgment coming into effect, scholars of the countries of the continental law system don't agree with them. The countries of the British and American law system adopt the case law. Because of the impact in legality, the scholars of the British and American law system almost didn't study the validity of time in criminal law. Nevertheless, we can find the contents about the validity of time in criminal law in the criminal law scholars' studies on fundamental theory of the criminal law. The criminal laws of the British and American law system agree on defining the retroactivity of criminal law. The scholars of our country don't attach importance to the validity of time in criminal law, and controversy on the question is obvious. On the legislation of the validity of time in criminal law, the stipulation of old criminal law is specific relatively, consisted of the criminal law coming into effect and the retroactivity of criminal law and so on. The stipulation of the validity of time in criminal law in effect is limited to the retroactivity of criminal law.Chapter 2 discusses the function of the validity of time in criminal law and the relations between the validity of time in criminal law with the related category, suchas the validity of time in criminal law with the principle of nullum crimen sine lege, nulla poena sine lege. Restraining, impartment and human sympathy already become the pursuit of the value of criminal law, and the determination of the validity of time in criminal law is a very important guarantee for the realization of the objective. Under the hypothesis, the author points out for the first time that the validity of time in criminal law is a very important role in protecting society and human rights, carrying out the principle of nullum crimen sine lege, nulla poena sine lege, saving the cost of the criminal law, enhancing efficiency of judicature, saving the resource of national judicature, and accelerating the stability of society. Generally, the principle of nullum crimen sine lege, nulla poena sine lege is regard as the first principle of contemporary criminal law. The author thinks that the validity of time in criminal law matches the principle of nullum crimen sine lege, nulla poena sine lege in the foundation of their theories. So the author considers that the study of the validity of time in criminal law should be connected with the principle of nullum crimen sine lege, nulla poena sine lege and be guided by the principle of nullum crimen sine lege, nulla poena sine lege. The stipulations about the validity of time in criminal law and the limitation of prosecution are all in the general part of the criminal law, and they are all have something to do with time. According to the requirement of the principle of nullum crimen sine lege, nulla poena sine lege, convicting and condemning somebody must be judged by the criminal law in effect during behavior, and it must be judged by the whole law, not the part of it. This means that the limitation of prosecution should be determined by criminal law in effect during behavior. Generally, the question of retroactivity of criminal law should be settled by the principle of application of the old law with the exception of a less punishment in the new law. However, in current judicial practice, judicial official don't agree on the limitation of prosecution problem. The settlement on moderating the relation between the validity of time in criminal law and the limitation of prosecution has important significance in judicial practice. The author tries to analyses the relation of the two thoroughly.Chapter 3 analyses the foundation of the validity of time in criminal law. It is not different to find that foreign scholars are short of the study on foundation of the validity of time in criminal law, whether in the continental law system or in the British and American law system. Only the scholars of Italy, Japan and Germany concern the foundation of the validity of time in criminal law in the studies on defining the retroactivity. From the limited study of these scholars, we can find easily that the foundation of the validity of time is guaranteeing citizen's freedom and human rights. The Chinese scholars are short of the study on foundation of the validity of time in criminal law either. The words in doctor degree dissertation "research on the validity of criminal law" of doctor Li fu-you said, "Scholars of our country almost didn't concern about the foundation of the validity of time in criminal law." In this chapter the author analyzes the standpoints of foundation of the validity of time of criminal law, and divided the foundation of the validity of time of criminal law into three parts. First, as a stipulation on the system, the validity of time of criminal law is founded on the definite human nature by all means. The next in order, the validity of time of criminal law stems from the power of country directly, and it is the surficialfoundation of the validity of time of criminal law. Again, the purpose of the existence of national power of sentence is realizing just and utility of criminal law. Just and utility of criminal law is the substantial foundation of the validity of time of criminal law.Chapter 4 analyses criminal law's coming into effect and losing effect. The author tries to discuss it in both theory way and practical way. The validity of time of criminal law stipulates the application scope of criminal law in time primarily, including the time of coming into effect of criminal law, the time of losing effect of criminal law, and the retroactivity of criminal law. Among them, the time of coming into effect and the time of losing effect are the basis on suiting the criminal law. The chapter studies the concept, the form, the time of criminal law's coming into effect .At the same time, the chapter deals with the concept, the form, the time of losing effect of criminal law. Standing on the comparative research approach, author clarified the different standpoints. Aiming at varied forms of the criminal law, the author studies on the coming into effect and losing effect of criminal law about individual criminal law, auxiliary criminal law and the legislative interpretation of criminal law separately, in order to provide advice to practical operation.Chapter 5 analyses the retroactivity of criminal law. After the criminal law revised newly on October 1, 1997 coming into force, in the trial of the case which has been not tried or whose judgment has not been confirmed yet, it will be related the retroactivity of criminal law. Though our country has stipulated the principle of application of the old law with the exception of a less punishment in the new law in the criminal law that is revised newly, it is too simple, difficult to operate, in existing legislation and relevant judicial explanation. The theoretical research on the question is not deep enough; unable to hold various kinds of difficult problems emerging constantly in the judicial practice accurately. The first part of the chapter studies the concept, the principle, the theory foundation and the suit of the retroactivity of criminal law. The retroactivity of criminal law, it refer to whether new criminal law can apply to the behavior that has been not tried or whose judgment has not been confirmed yet before the new criminal law is coming into force, if it can be suitable, just have the retroactivity; If can't be suitable, no retroactivity. this text analyses deeply the coordination between the retroactivity of criminal and the principle of a legally prescribed punishment for a specified crime, and combine the principles on the retroactivity of criminal law has been regulated in the legislation of countries all over the world. Analyzing the inherent value and the criminal's function reflected one by one, And has reach the rational conclusion of adopting the principle of application of the old law with the exception of a less punishment in the new law. The second part of the chapter analyses the ordinary problems in application of the retroactivity of criminal law, comprehensively and delicately. They concern the problem about whether to choose the application of criminal law, when the old law and the new law exist at the same time; the determination of the time during behavior and the criminal law in effect during behavior; the very application selected from "the new law", "the old law" and "the intermediate law"; the comprehension about "this law", "not regardas crime", "less punishment" and so on. The third part of the chapter study on the specific application of retroactivity of criminal law, concerning continuing offence, continuous offence and implicated offence. The fourth part of the chapter discusses the application of retroactivity of criminal law on special criminal regulations, such as individual criminal law, auxiliary criminal law and bland criminal law. The fifth part of the chapter analyses the application of retroactivity of criminal law on judicial practice.