The Realization Of No Punishment Without Law

The key point of the realization of no punishment without Law is in judicial course. The criminal law and its regulations could not provide all keys for judges. The abstract of regulations ,the limits of contents of law and the vague of legal languages make the penal law be limited ,so legal method is very important. The thesis should research model of legal method fitted for our constitutionality process by studying the judicial application of the principle and the application of legal method .The research should insist on the criminal constitution and be from the angle of legal method.This thesis is composed of introduction and main body. The main body comprises four chapters. The main contents and viewpoints are as follows:1. IntroductionA grand occasion of researching the principle of no crime without Law happens since the principle was established in 1997 .The research is mainly about the idea or regulation .Though some research pay attention to the realization in judicature, it is limited to the level of interpretation .Researchers have neither make the history of the realization of the principle clear , nor make out how to apply methods when the argumentation has been the leading legal method ,nor set up complete connection between the realization and legal methods during which the principle and its value should be insisted on. To change research angle from legislation to judicature and to pay close attention to the realization of the principle and the application of legal methods is the thesis' aim.The realization of the principle includes some levels such as idea ,legislation and judicature, among which the level of judicature is the key point. Because of the judicial character of Legal method , to research the principle from the angle of legal method has make it clear that this thesis mainly study the judicial realization of the principle .To research how to realize the principle by using legal methods is the thesis' intention. The research is designed according to the history of theory of legal method and the development of no punishment without Law. The design of mechanical application of the resolute principle failed ,but the design and its idea are important to the realization of modern legal system ,so the first chapter is named mechanical application of penal law and the fate of the principle. Follows are realizing no punishment without law by interpretation or by argumentation .To make concrete contents practical ,this thesis connect theory and practical characters of legal method with the rich materials of criminal law , cases and questions. Thus not only the attraction of philosophy thinking and living case can be get ,but also the thinking model of judging criminal case will be provided to judges.The style of no crime without law varys in different families of law or different countries, but all apply legal methods .As statutes are more and more in England and America, the application of legal methods about statutes gets more important .The thesis should mainly narrate their common ,and tell characters specially.Mechanical application , interpretation pf law and legal argumentation ,which is summarized according the history of legal methods and no crime without law ,are not represent all legal methods. A system of legal methods has been formed since modern times . Methods listed above have close connections with other methods such as finding law ,compensating hole in law and measuring value. Considering the situation of our slow constitutionality ,to make further think about the realization of no punishment without law is important, so to comb the relationships of legal statutes and then to make clear our standpoint on how to use legal methods is the main point of the last chapter.2. Mechanical Application and the Fate of Resolute Principle of no Crime without LawResolute no crime without law was designed in 17 and 18 century . National positivism ,rational construction doctrine and resolute faith in precise law, which are formed by legal idea of no faith in judges because of dark judicature in modern Europe, are the special social ,ideological and cultural condition .The principle is based on system of separation of powers and formed its contents taking stand of legal formalism. In those days ,the law of no crime with out law was thought to be statutes ,the crime was taken as violating statutes ,The precision of penal law was be stressed ,the value of law was taken as protecting private liberality ,the mechanical application and deductive reasoning was taken as the basic logical thinking model ,and judges were only user of the legal machine. Later the practice of mechanical application and conceptualist jurisprudence got sustained with each other. In the meanwhile .though Anglo-American law system formed its own tradition of justice ,it also had mechanical legal philosophy if we take the model of mechanical application as character of the strict legal system age Judges were taken as the executer ,not enactor ,and this idea also affect its criminal justice ,which took the form of strict precedents and limiting common-law crimes by statutes.Mechanical application and resolute no crime without law failed at last ,but it made an age of strict legal system. This is important for Europe and America to be constitutional states .Though the style got many critics , its idea of strict legal system will inspire us and today deductive reasoning is still enlightening judging criminal cases.3. Realizing the Principle of no Crime without Law through Interpretation.In the end of 19 century ,criminal classical school gave its way to criminal positional school which criticized the resolute principle and proposed to extend judges' power of interpretation and to cut down statues status. The principle developed from resolution to relativity, at the same time ,legal method turned from mechanical design to right of discretion.The reasons given by different counties are different ,but the common reasons are as follows: legal language is limited ,contradiction exist between development and stability ,between summary character and special cases. Besides these ,there are other reasons :firstly the limit of statutes make interpreting penal law necessary ,secondly the value of the principle does not reject interpretation, thirdly to interpret criminal law can help arrive compensation and unity between special justice and general justice .Interpretation of penal law is different from what in other branch laws in that interpretation of penal law is strict. Plain interpretation is obvious. Analogical interpretation is banned. Natural interpretation is not only truthful but also logical. Widen interpretation which is different from analogical interpretation should be cautious. To interpret legal languages could not depart from language condition . Tradition ,theory ,cases ,ethics, etc are materials affecting interpretation .In our country .informaljudicial interpretation is also one of the materials. Function of these materials are neutral.In counties of Anglo-American law ,to interpret statutes in light of cases is their obvious characteristic. To interpret penal statues in light of cases in America, which carries out special regulations and rules and has natures such as combination of stability and alternation, the rationality of conviction and the identification with the rule of law ,will inspire the theory and practice of our penal law interpretation.4. Realizing No Crime without Law through ArgumentationWhen different legal methods bring different conclusion and to make orders of them is difficult, legal argument becomes the leading method since it rose about 40 years ago. legal argument emphases the acceptance and nationality of judicature. Topics connected with judicature include :from monologue to dialogue -model of legal method transformation ,complex cases with argumentation Judging value with argumentation ,opening reason of judicature, judicial procedure model , rules of legal argument argumentation, methods of legal argument, etc.That crime and punishment are provided for by law in advance is required by no crime without law, but statutes could not do all things. The open nature of regulations provides wide space for argumentation. legal argument has its limit and shortness, besides, legal argument is restricted by no crime without law, so effective idea ,rules, procedure should be abided by .When legal argument apply to penal law ,its applying field and function should code with its relationship with the principle .To find argumentation space under the principle is writer's basic standpoint.5. Using Legal Methods Comprehensively and Pondering over Realization of no Crime without Law in Our Country Further .Inspecting the history of legal method vertically, it proceed from mechanical application to interpretation of law, then to legal argument. Examining legal methods horizontally, they not only compare with each other but coincide with each other deeply. To decide cases , one method is not enough but using different methods comprehensively is necessary. Applying legal methods is directed by main value of the states or districts and is restricted by relationships between legal statutes and cases .So is no crime without law.To apply legal method such as interpretation of law .argumentation and deductive reasoning and so on ,we should consider their status in the system of legal methods and relationship among them, especially the relationship between legal methods and regulations enacted in advance . What is the relationship between judgment and regulations ?Many scholars suggest different models of judicial adjudication thinking .The theories of'Subsumtionsmodell model" , "Gleichsetzungs modeH""interpretation circle",are different from the traditional deductive reasoning. Besides this ,the definition of the regulations which scholars point out enhance the doubt about the deductive reasoning. But in written-law countries and also in case law countries, the skeleton of the deductive reasoning exists in the course of judicial adjudication. As for criminal law, no crime without the law do not reject judge's interpretation ,so the mission of the interpretation is to get ready for the big premise of the legal reasoning through interpretation and argumentation which can make the criminal regulations more definite.The research of realization of no crime without law in our country is the key point of research of realization of the principle, so basing on situation of our slow constitutionality ,to apply legal methods comprehensively according to the relationships between legal statutes and cases , which is directed by the value of the principle of no punishment with out law, has important practical meaning. On this point ,firstly we could not drift from the existing and effective regulations. Secondly different legal methods should be used according to different relationships between the cases and regulations. Thirdly because different interpretation will come out and cases should be decide in arranged time ,we should take the system of regulations ,ofwhich constitution is the highest ,as the argumentation premise .We should makejudgment accord with justice and settle disputes by rational argumentation whichdepends on due procedure .All of these are indispensable to realization ofconstitutionality.