Defending And Improving On The Principle Of The Retroactivity Of Our Country's Criminal Law

The retroactivity of criminal law, it refers to whether the criminal law can apply to the behavior that has been not tried , if it can apply to, just have the retroactivity; If can't, no retroactivity. The principle of the retroactivity of criminal law exactly is the principle that new criminal law or the old one will be chosed to apply. It is generally considered that Section 12 of the current criminal law of our country is the regulation concerning the principle of application of the old law with the exception of a less punishment in the new law.To say in form, as one of the derivative principles of the contemporary principle of a legally prescribed punishment for a specified crime, the principle of application of the old law with the exception of a less punishment in the new law is in conformity with the purpose of punishment——to punish offenders fairly and prevent criminal activity effectively, furthermore, it is in accordance with the criminal policy of "Combining Punishment And Leniency" to a certain degree. In addition, the principle of application of the old law with the exception of a less punishment in the new law has obtained an obviously predominant status in the practice of China and foreign countries' criminal legislation ,and it is difficult to shake in the predict future. To say in substance, the principle of application of the old law with the exception of a less punishment in the new law promote at least correspond with the rare human value including justice,democracy,freedom,human rights and so on.The scientificalness in principle can't ensure the perfection of the details, so there are some spaces and necessaries to be made further improvement on the provisions of retroactivity of our country's criminal law. Firstly, as the objective reality of criminal legislation, the force of middle law ought to be certificated. Secondly, it is really arbitrary that Article 2 Section 12 of criminal law adopt an entirely negative attitude towards the problem of the retroactivity of decided behavior. The correct choice is to partially admitted the retroactive effect of the criminal law after alteration on the decided behavior. Finally, in respect to the problem of confirming the limitation period of prosecution, there are some violations of legislative spirit of the principle of application of the old law with the exception of a less punishment in the new law in the provisions of criminal law. though the judicial interpretation of law corrected it, but the grades of legal validity was disturbed at the same time.