Study On Judicial Actualization Of The Principle Of Statutory Crime And Penalty

Principal of a statutory crime and penalty is the fundamental principle in criminal law. The principal in our criminal law makes the law ruling system become better than before. But there are obviously distance between the new principal in our criminal law and original principal. The principal in our law has the function of punishing and protecting. The law maker has confused with criminal function and principal function. So it ruin the base of protecting human right. Putting the principal into practice has some problem in our country. For example, abusing the function of protecting society, and the judge organs abuse the right of explaining laws. And the judge do use their right to explain the laws which had obeyed the principal. In addition, the courts and judges aren't very independent. So there is a long way to finish the process of practice principal of legally prescribed punishment for specified crime. In that case,I write this paper, and hope it could make some use in practicing the principal.This paper is made of four parts.The introduction part described that, the principal play an important part in developing history of criminal laws. Since Qing Dynasty to modern times, we truly described a real principal of legally prescribed punishment for specified crime in criminal law of the People's Republic of China. By leading of old way of thinking, the law maker and executor do not know much about that principal. So it is necessary to talk about this principal. The first part is a describe of principal of statutory crime and penalty. And this part is talk about the basement. This principal had been doubted in twentieth century. But it has been appreciated after the second World War. It will be use in modernization of legal system. And the principal do have Chinese character. It appreciate protecting society more than human rights. The principal has three disadvantages:one is not has crime name,other is not has clearly describe and the last is has some problem in system.The second part is about the advantages of practice the principal. It include three parts:The abusing of social harmfulness. The conclude is the connection of soviet criminal law and our society. Many scholars doubt it, but it has some reality in our society. But because of infectby analogia in malam partern, this has been abused. The interpreting of the law obeyed the principal, and has infringed making law interprets. And the judge has always amuse the right of interpreting laws. The judges is dependant, the judicial committee and senior courts infringed the judges. In addition, the government and medium is another reasons.The third part is the resolving mechanism. We must make law belief, in order to practice the principal. The formalism must have priority. So we should insist to using formalism interpret way. The judge must follow the principal in judging. The judge should have independent role, the system of courts must be changed. The party should guide the judges in general orientation. So the role of the judges must be protected, so that the judges could independent. And we should ovoid the infringing from outside.The conclude is a summarize of disadvantages of practicing the principal, so we must set the rule belief, and the way of practicing the principal is far from target. We must make it better in the respect of making laws practicing laws, and enforcing laws.