Commentary On The Principle Of Crime Set By Law In China

The crime set by the law of there will be no crime without the law and there will also be no penalty without the law suggests that state penalty should be restricted, human rights protection and the awakening of human sense. Once established, the common understanding and mainstream have been formed in the world criminal judicial concept and its practice. The establishment of crime set by law in China has complied with the fashion of world developing history of criminal law, which is an important development in Chinese criminal legislation and also the symbol and direction indicating that Chinese law has gradually walked to it maturation. But criminal legislation is only a kind of expression of the principle of crime set by law to be code. Something that truly makes it realize is an important subject in the field of criminal judicature. Scholars have made lots of discussion on it. This article, based on the material connotation of the principle of crime set by the law, taking commentary as its point of view, has made an analysis and exploration on the present condition and prospect of the principle of crime set by the law in China to mold Chinese criminal judicature personalities as courtesy, humanism and tolerance. This article is divided into three parts:The first part is an overview about the historical background and development of establishing principle of crime set by law in China. Marxism philosophy tells us that human world and scientific development all have proved that the world is in the condition of common connection and permanent development, the development of things is the result of connection and conflict between internal cause and external cause. The establishment of crime set by law in China is also not an exemption, which is the result of internal cause and external cause. 1) The establishment of crime set by law in China is caused by the external cause of the main trend of world criminal law development. It is the result of struggling by western bourgeois thinkers against the crime boldly made by feudal society, which is a brave challenge on the inflation of feudal autarchy criminal power and existing condition in which human right is seriously deprived. It requests the law to stipulate crime and penalty, which has established the new concept of no crime and penalty without law in the history of criminal law for the first time. It has gradually become a kind of trend in judicial concept and practice, which has been received by most countries. Therefore, Chinese criminal law under development will be surely influenced. 2) The establishment of crime set by law in China is a kind of limitation to national penalty power and the admiration of human rights under social democracy legal system. It is a kind of internal necessity for protection and achievement. As a kind of ideology, the law has become strategy to manage state affairs and social cultural phenomenon. Human and human beings are the basis for the existence and development of society and country. Emphasizing human is the yardstick of everything on earth; equality, freedom, fairness and order are the basis for human to live freely in dignity. While the law is a kind of perfect connection between democracies, freedom, human rights, civilization and validity. The law itself has many strong points. Affirmation, universality, being divinable and compulsive could determine that the law could adjust class relations, each kind of important interest relations and also personal behavior. The law emphasizes administering by many people, while objects or weakens administering by single person or morale. It requests the officials to work according to the law and at the same time requests the law stipulations to be clear, open, moderate, feasible, non-retrospective and material. It pays attention to the limitation of public rights and respect and protection of personal rights. Human rights protection function of principle of crime set by the law could be shown. Socialism counties emphasize all the rights and power belong to the people. The people are the highest power enjoying body. To guarantee human rights, the establishment of crime set by law is the necessary results. 3) The author has reviewed the development and evolution of crime set by law in China to explain its material connotation. And then the author has tried to analyze the historical status of the establishment of crime set by the law, which has laid the base for the commentary in the following.The second part is the analysis on the present condition of crime set by law in China. Crime set by law has become a code in China, which is a milestone of Chinese socialism legal system construction. It not only marks the development and reinforcement of Chinese democracy and legal system, but also marks the breakthrough development received by the reformation of our criminal law, which comply with the developing trend of modern world criminal law. It has increased international reputation of Chinese criminal law, especially that the criminal law has strengthened the limitation on national penalty power, which has formed a kind of protection on the personal rights of citizens. However, the legislation of crime set by law has just provided a prepared plan for problem solution. Criminal judicature is the protection of achieving crime set by law at the end. Because of the limitation on concept and legislation technology, the principle of crime set by law has not been effectively implemented in the criminal legal system in China. The task to mold criminal and judicial personality of crime set by law is a quite hard and may need a long time. 1) Criminal law shows and carries out the principle of crime set by law. The sense of law could return and criminal and judicial personality could be molded. The legislation of criminal law after being modified has insisted crime and penalty set by law. It has almost achieved legal crime and penalty and completely abandoned analogy system which will enlarge the criminal liability. In criminal judicial law, national penalty right has been limited and thus the rights of citizen could be protected. Based on rational cognition, criminal law begins to pursue the goal of penalty, self-consciously limit the retaliation on human by the penalty. It asserts the protection function of penalty. Crime set by law itself will limit national penalty power and prevent judicature boldly made. Human rights protection function and value could be shown completely. 2) Crime set by law has defects in the implementation of criminal law. Deviation and violation on the clearness and reasonability of crime have legislation obstruction. The phenomenon of legislation field intruded by judicial explanation and the existence problem of reasonability of main bodies has strongly impacted the application of statute law. The characteristics of recapitulation and with delay of legislation and the lack of controlling mechanism have caused misusing of judgment power by the judge and deviation of fair judgment.The third part is the prospect of crime set by law in China. Chinese society has laid particular stress on national standard and social standard, but has neglected personal rights of citizens. To truly establish crime set by law in criminal law, the achievement of concept, legislation and judicature of crime set by law will become necessity. The establishment of crime set by law has received benefit from the existence from citizen society. Citizen society established based on the contract will adore equality, freedom, fairness and security. It will pursue personal benefit, confirm and protect personal ownership, establish and improve citizen society, promote the establishment of crime set by law in the meaning of concept, increase individual, right and law consciousness. The above are the most complete and thorough expression of crime set by law. The principle of crime set by law started form legislation, which is the headstone of crime set by law. There will be no judicial crime set by law without legal one. In the legislation to establish crime set by law, the concept should be clear with criminal law regular and the law certain, clear, open and transparent. Meanwhile, criminal legislation should be legitimate. Unlimited admiration in legislation rights is objected. The relationship between the wish of longing for order and change in social regulations should be sorted out. Good law should be made and bad law should be prevented, trying to restrict national penalty and protecting the achievement of law value concept under law managing times. Criminal law has only made crime set by law a kind of code, while criminal judicature is the guarantee to achieve crime set by law finally. The unavoidable hysteresis and not distribution of criminal law and statute law request judicial behavior to exert its dynamic role and creation completely when affirming the effectiveness of statue law. By using limited judicial explanation and free extenuatory treatment, the defects of statue law has been made up. It is expected that the rational thinking of criminal law could be established and the personalities as courtesy, tolerance and humanism could be molded by the above strategies and measures.