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Study On The Principle Of Definiteness In Criminal Law

Posted on:2005-08-23Degree:MasterType:Thesis
Country:ChinaCandidate:A G ShangFull Text:PDF
GTID:2156360122485266Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The principle of definiteness in criminal law needs clear provisionsabout the content of crime behavior, the constitutive elements of a crime,classification and the range of penalty to every crime. It prohibits thelegislative body making the fuzzy, unclear provisions concerned theconstitutive elements of a crime, the crime behavior range and delimitation,the range of the statutory sentence. The so called "clear provisions" inthe principle of crimes and penalty by law should bear the specific meaningthat the texts of criminal law are definite, which belongs to the substantialaspects of the principle. The definiteness of the crime and punishment isthe key of the principle. Legal prescription is only the first step towardthe core requirements of "definiteness provision". Among all the sub-lawsectors, it is no doubt that the requirement in the criminal law is the mostsevere, so the opinion of the writer is that the definiteness principle incriminal law should upgrade to the independent basic principle.The principleof definiteness, firstly introduced by the American criminal jurist in theforepart of the twenty century, was broadly accepted by the theory andpractices of the civil law system. The foundations of the principle ofdefiniteness derive from the theory of classical criminal law, the theoryof restriction and non-integrality in criminal law, the theory of the controlof the power, the theory of criminal law getting some character of the civillaw and so on. We can anticipate that the principle will cast the meaningfulimpact on the safeguard of human rights, rule-by-law in criminal law, thejustice and efficiency of judicial system. It is no doubt that the Chinese criminal law (1997) has some defects inthe principle of definiteness, which include the unclearness of unit crime,the dealing principal of the number of the crime and some meaning of the keywords in the criminal code and so on. As to the specific rules, the unclearnessof crime, pulling together of unrelated provisions, the existence of crimeof salmagundi, the proliferations of simple and blanket description oruncertainness provisions and so on.The defects in definiteness of the resulthas manifested from three aspects, which include the non-unification ofjudicial practice, the excessive of freedom of justice and all kinds ofinterpretations from legislative and judicial body, which bring forward thephenomena of substitute of criminal law, let alone the conflict between them.In essence, the causes include many respects, from the Chinese traditionalculture, the method of thinking and so on. Since the open policy hasimplemented, the basic legislative rule of coarse weighing thin, theinstrumentality of criminal, and the fundamental should attribute to theimperfect of art of legislation and the legislative system. The fundamental way of perfect the principle of definiteness in criminallaw should trust with the enact of criminal code, symbolized in the perfectof legislative art,the more clear constitution of crime and less simple orblanket description, use of method enumeration, reinforcing theobjectiveness of description, the clear delimitation of key words in criminallaw and so on. In the present, the realistic way is to strengthen theinterpretation of the criminal legislation. Perfect of the criminalinterpretation system directed by the principle of definiteness,establishment of the case law system concerned the criminal law to supplementthe definiteness. Most importantly, the fundamental reform should be theestablishment of Review of violation of constitutional law which the powerin the charge of the specific body mainly focuses on the review of criminallaw or the judicial interpretation by the standing committee of People'scongress and the Supreme Court and forwarding its suggestions about thecorresponding modification of the acts. The reality of Chinese criminal law has deviated from the ideal targetand has long march to...
Keywords/Search Tags:Penalty by Law, Definiteness, Penal legislation, Interpretation of Criminal Law, Rule of Law
PDF Full Text Request
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