| In the 1997 PRC Criminal Law, it was the first time that "Rule of Crime and Penalties Being Created by Statute" was set up as the primary principle. According to Article 3 of the new PRC Criminal Law, "If it is proclaimed to be criminal in writing in the criminal law, the criminal shouled be convicted by law; and if it is not proclaimed in writing , the criminal could not be convited.". This ever-stirring new legislation even called a worldwide attention because it was the codification of this Principle with a tenet of human right protection in the new criminal law, a significant step to carry out the basic national policy of ruling by law, a substantial improvement in criminal legislation and a landmark of the modernization of the criminal law. Nevertheless, as time elapses and the society develops, the Principle demonstrates some negative and unreasonable elements. In fact, the realization of the Principle in this temporal world needs not only the severe conversion of the traditional view on criminal law, but also the incorporation of the spirit and demand of the Principle into every aspect of the legislative and judicial process. The sole codification is far from enough to achieve this goal but make the Principle inanimate. By probing into the origin, establishment and development of the Principle in the western civilization, this thesis anatomizes the process of codification of the Principle in the new PRC Criminal Law and puts forward some suggestions on its further development, in order to call more attention on the evolution and implementation of the Principle in China and thus promote the modernization and internationalization of the PRC criminal law.The Principle was first raised by Mr. Fei in nineteen century which was expressed in the form of Latin adage. It was translated into Chinese as "no enacted clause no crime, no enacted clause no punishment" or "no enacted clause, no crime and punishment", which is more concise and comprehensive. In general, unless there is an enacted law stipulating what activity constitutes a crime and what punishment shall be, no one shall be punished for his/her behavior, which is the core of the Principle. The origin of the Principle can be traced back to the 1215 Great Charter of Britain. However, it was from seventeenth to eighteenth century that the Principle came into being after assimilating many valuable thoughts from then. Since then this Principle has been evolving along the direction of human right protection for more than two hundred years and finally grows up to be one of the most fundamental rules of law throughout the world. In China, the Principle suffered almost a century's hard time and eventually was codified in the new criminal law in 1997 as a basic principle. With no doubt, it was a breakthrough of democratization of the rule of law in China, embodying the affirmative demand of policy of ruling by law; a breakthrough of the notion of criminal law legislation in China, embodying positive influence of human right protection and individual's freedom; and a breakthrough of modernization of the criminal law legislation, embodying the trend of worldwide criminal law development. However, as time elapses and the society develops, the Principle demonstrates more and more negative and unreasonable elements that need immediate rectification and innovation. In light of respecting individual's freedom and safeguarding individual's rights, we should handle properly the relationship between academic criminal law and regulatory criminal law, criminal policy and criminal law, criminal law legislation and criminal law, facilitate the process of establishment and advocation of the legal culture of, in line with the modern spirit of rule of law, civilization of the criminal law, human right protection in priority, individual's freedom in essence, and the criminal law in modesty, regulate the Principle reasonably so as to realize the initial goal and current spirit of the Principle, build up a modern criminal law structure of ?... |
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