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On The Retroactivity Of Criminal Law

Posted on:2005-02-16Degree:MasterType:Thesis
Country:ChinaCandidate:D X ZhangFull Text:PDF
GTID:2156360122486221Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
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. After the criminal law revised newly on October 1, 1997 comes into force, in the try of the case 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.At present, the research on the retroactivity of criminal law, the field of domestic theory concentrating on more concretes problem in the administration of justice, judging the case as it stands, seldom probe into the criminal law value behind the retroactivity of criminal law, has made the trouble of attending trifles and neglecting essentials, and not solve the problem method from macroscopic. From the basic point, 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; After the retroactivity of the legislation of criminal law in our country, through the thorough analysis of the difficult point related to the retroactivity of criminal law question in practice, I put forward the scientific solution; in the end, I analyses the retroactivity ofthe judicial explanation on criminal law in practice and put forward the corresponding solution. This text is divided into the following three major parts:The first part: the outline the retroactivity of criminal law. In this part, I recommend the retroactivity of criminal law at first; Then explained the relation of legal principle of crime and the retroactivity of criminal law, and pointed out the uniform of the principle afterwards of prohibition in the legal principle of crime and The principle of application of the old law with the exception of a less punishment in the new law; Finally, I analyses the doctrine of observing old laws, the doctrine of observing new laws, the principle of applying the new law with the exception of a lesser punishment in the old law; and the principle of application of the old law with the exception of a less punishment in the new law; after Analyzing the criminal law basic value of embodiment of each principle one by one and Comparing its pluses and minuses, It is the most scientific conclusion to adopt the principle of application of the old law with the exception of a less punishment in the new law.The second part: The retroactivity of criminal law of my country. The regulation about the retroactivity of criminal law question has gone through a lot of developing stages, After the criminal law that is revised newly issue and implement finally, have confirmed the retroactivity of criminal law clearly; Then author recommend the basic content of the retroactivity of criminal law in our country, and key problems on it, What deserves to be mentioned is, the retroactivity of the complementary norm in blank penal code. Starting with establishing the position of complementary norm, the author has put forward one's own opinion to scientific settlement; in the end I study the question on how to hold the typical issue on the...
Keywords/Search Tags:The retroactivity of criminal law, The principle of application of the old law with the exception of a less punishment in the new law, Judicial interpretation
PDF Full Text Request
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