On The Spatial Effect Of Criminal Law

The spatial effect of criminal law shares a same origin with the "international criminal law". Nevertheless in recent years, its relevant content has seemed to be "the forgotten corner" since few attention has been paid to it. This dissertation aims at re-examining this issue with a theoretical perspective of the international law, in response to the internationalized and high-tech tendency of crime so as to break the ice between the research of the internal criminal law and the international criminal law. The dissertation is divided into 5 chapters:Chapter â…  generalizes the fundamental issues of the spatial effect of criminal law. The spatial effect of criminal law is contained in the more extensive concept of criminal law effect and even the legal effect, however it's widely accepted in jurisprudence that whether a law is applicable or not depends on four factors, namely time, place, event, person, which are indispensable and co-subordinated to each other. That the criminal law has to solve is the conviction and punishment of man's behavior which contains the two factors of person and event, so concerning the setting of the criminal law effect dimension as a premise, these two factors should better be placed in the research of the factors of time and place. There's also a convention to identify the spatial effect of criminal law with the "international law" and the latter has undergone a transformation from a narrow sense to a general sense in the scope of its implication, so currently, we tends to adopt the name of "spatial effect of criminal law". It refers to the effect of the criminal law that can be exerted to people's crime in a certain geographical scope. This concept is commonly confused with power of territorial effect of criminal law, criminal jurisdiction, power of punishment, jurisdiction of criminal proceedings. But in fact they are different, yet sharing countless ties with each other. Why to identify the spatial effect of criminal law with criminal jurisdiction is mainly owing to the fact that public law has a strict territoriality and it rare for us to find a criminal law that can be applied in another state. It results in the ignorance of its implication about application of criminal law. Concerning the legal nature of the spatial effect of criminal law, there are theories of contentious conditions, of constitutive requirements and of punishment conditions. Theory of punishment conditions is meaningful to a certain degree, but if we broaden our field of vision, it can also be served directly as conflict rule.Chapter â…¡ concentrates on the principles to determine the scope of the spatial effect of criminal law, beginning with its origin, stressing the interpretation of the theoreticalbasis for those principles to provide a sufficient support for their inclusiveness. Concerning the territorial principle of the domestic offense, the locality of a crime is its key issue, so with the basis of universal theory, it provides a detail interpretation on how to identify the locality of individual offense and complicity. As for its applicable scope, it criticizes the act to treat ships, aircrafts and embassies and consulates abroad as the extended territory of our country. The principles applied to external offense generally include: 1.Principle of nationality. It has 3 types, all states defined it in a certain way, in comparison, the current provision adopted by our country are justifiable, but to cancel the dual criminality principle deserves some consideration. 2.Protective principle. Since its purpose contradicts confining system of dual criminality, it should be referred to the foreign states, affirming the crime that infringes essential interests of the country is unnecessary to be regarded as crime in place of the act. 3.Universal principle. As it's a restatement of universal principle in international law, when we introduce it to internal legislation, if the crimes regulated in the international treaties, which our country conclude or participate don't harmonize with accusation system of subprovisions, we can solve the question by add new charges, perfecting the current charges or through quantity of crime. Relevant provisions should also be applied to units, while the current criminal law only applies to natural person. This gives us direction to improve the legislation.Chapter III introduces different tendencies of scope of application of criminal law caused by the two sharply different tendencies of self-restraint and excessive expansion respectively in the geographical space and the cyber space of states' sovereign idea under the change of the world. As we all know, the principles discussed above are the most centralized and distinctive reflection of the sovereignty, but this idea has gradually been relative with the raging waves of globalization and regionalization. With the awareness of the necessity to strengthen the ties between countries, and with the road traffic crime as a breakthrough, the European countries have taken the initial move to confirm the delegated power of penalty of the country where the offender is, based on the legal community set before hand. It is helpful to fill the effect scope blank, goes in contrary with the extradition system and goes with the tide of international co-operation, so it should be reinforced into internal criminal law. Another impact is brought by the Internet. All countries tend to apply their criminal law to the cyber space where there is still not regulated by law. Although owing to the feature of the cyber space, it should not become an exception for penalty, the current legal and judicial situation deserves deep reflection. We may try to interpret the territorial principle and protective principle in acondensed way, that is to, set relevant standard to get a balance in the pursuit of value of security, freedom and technology.Chapter IV puts forward the concept of conflict of the spatial effect of criminal law, criticizes the opinion that criminal law has no extraterritorial effect and there's no criminal legal conflict, demonstrates the existence of the conflict, and discusses its occurrence causes and types. This conflict refers to the applicable conflict when different scopes of law apply their criminal law to the same foreign-related case, but their provisions are different or none of them can be applicable. In fact, extraterritorial effect is only a fictitious effect in criminal law scholars' opinion and it is not understood on the level of choice of law, so it actually exists. This conflict can further be divided into active conflict, negative conflict and international conflict, interregional conflict. Since active conflict is prominent and originated from legislation, which can never be diminished, all studies below shall center on how to coordinate rather than solve the active conflict on the basis of telling international conflict from interregional conflict.Chapter V makes a new exploration on the way of coordinating the international conflicts of the spatial effect of criminal law based on the analysis of the defects of traditional proposition. Those traditional methods include confirming prior jurisdiction rule, endowing international criminal court compulsory prior jurisdiction and unifying criminal law of each country, etc. All these methods put up the problem to an international level, so it seems difficult to realize. Considered from the perspective of domestic justice and legislation, three other methods can be chosen: The first is to draw on the experience of principle of proximate connection in private international law under the guidance of the idea of benefit balance to find the most appropriate country to rule; The second is to apply the theory of law of direct application in private international law to criminal'law to breakthrough the tradition of not using foreign criminal law in order to leave a room for freedom of action, we can refer to the principle of lighter law in criminal law of Swiss. The third is to recognize foreign penal sentences actively. Starting from the principle of non bis in idem, then comparing the attitude of each country to foreign penal sentences, consequently examining Article 10 in China's Penal Code, we can find the disadvantages of the passively recognizing attitude toward the foreign penal sentences. In order to alleviate this conflict better, we have to recognize it positively and attach some terms at the same time. Surely all these need a change in attitude in sovereign idea, and there will be various inadequacy in practice, so the methods to coordinate the conflicts between countries should be multi-dimensional and should be changed with situations.Chapter VI focus on how to coordinate the interregional conflicts of the spatial effect of criminal law, especially combining with the typical reality of multiple regions of law in China. Since it is a kind of internal conflict, we can't copy the methods of coordinating international conflicts completely instead attention should be paid to the feature of one country. In view of the apical historical reasons for the occurrence of this conflict in our country and considering it's a kind of multi-level and multi-dimensional conflict associated with differences in institution, legal system, value and culture, we should base on our own national conditions in dealing with it. But some experience in other countries of multiple regions of law can also endow us enlightening, which includes patterns of conflict law adopted by some countries when they make a universal interregional criminal conflict rule, pattern of model law adopted by the USA in its codification movement and the pragmatic theory of interregional criminal law developed by the disintegrated Germany after World War II. Using them for reference, for the coordination of our interregional conflict, we should make a difference between domestic offense, external offense and offense within the region, offense beyond the region, and relax restriction of dual criminality to offense beyond the region belonging to domestic offense. We should also deny the criminal procedure law as the jurisdiction basis, and advise to determine jurisdiction by agreement according to separate situations and mainly follow the detailed regulations of the order of priority of territorial principle and that court that first accepts the case of complaint shall have jurisdiction. Finally, since the constitution has endowed the SAR the judicial power and final adjudication, that is to abandon the application of mainland criminal law, each scope of law should recognize the penal sentences of others under the principle of one China.