On The Principle Of Legally Prescribed Punishment

The basic meaning of the Principle of Legally Prescribed Punishment is "nullum crimen sine lege;nulla poena sine lege. "The principle of the Principle of Legally Prescribed Punishment was evolved during the process when bourgeois fought against the crimes and punishments were established at random in the feudal period, which can be dated beck to British Magna Charta of 1215. This principle was established in the Fifth Amendment of Constitution of United States in 1787 and the Human Rights Proclamation of France in 1789.The early principle of Legally Prescribed Punishment is an absolute one, which absolutely prohibited analogy and expansible interpretation, the application of unwritten law, the punishment of past crimes with new legislation, and the uncertain punishment. In the 20th century, this principle developed with the society and changed in some aspects, which represented in that conditional analogy was permitted of, unwritten laws could be an indirect source of law, the principle of adoption of former law and lighter punishment and comparatively uncertain punishment were permitted. In the modern time, this principle has new features now, which represent the principles of democracy and substantial justice etc.The theoretical base of the Principle of Legally Prescribed Punishment is the natural law theories by the contemporary enlightening ideologist and Psychological Compulsion Theory by Feuerbach, The Principle of Legally Prescribed Punishment has different contents in value in different periods. The absolute Principle of Legally Prescribed Punishment bases itself on individual value and stresses individual rights and freedom, demanding limitation on legislation power and judiciary power. The comparative Principle of Legally Prescribed Punishment, while respecting individual rights, also stresses social protection, basing itself on the social interest and representing both protection on human rights an social interest.The basic contents of the Principle of Legally Prescribed Punishment means that names of crimes and their punishment should be stipulated in advance. This principle includes the notions that crimes and punishment should be stipulated by law, and the crime punishment legislation after certain accident happening and analogy should be prohibited, and absolute uncertain penalty should be prohibited. Instead, penalty laws should be clear and fair. The above principle depends on the judiciary independence and realized by criminal judicatory.The slavery and feudal periods of China there was no such principle like the Principle of Legally Prescribed Punishment. In the late of Qing Dynasty, this principle was introduces to China, but was not carried out in practice. With the establishment of market economy the Penalty Law of 1997 clearly established the Principle of Legally Prescribed Punishment, which is a great progress forward. It represents the improvement and progress of China Penalty Law and will play an important role in judiciary improvement in the practice of criminal law and also positive social functions.The Principle of Legally Prescribed Punishment of China represents the combination of crimes and punishment and has relativity. In legislation, the Principle of Legally Prescribed Punishment of China has some deficiencies such as designing mode of crimes and punishment is not perfect and the lack of certainness of crimes and punishment and the reasonableness and clearness in legislation. In order to further the carrying out the Principle of Legally Prescribed Punishment, we need to correctly understand the judiciary interpretation and judiciary adjudication. The author believes that the Principle of Legally Prescribed Punishment, as an overwhelming idea of ruling with law, will surely be carried out in China.