| The principle of legally prescribed punishments for crimes is thebasic principles of the current criminal law. It is mark of a legal societydifferent from autocratic society. According to article 3 of the new PRCcriminal law ," If it is proclaimed to be criminal in writing in the criminallaw, the criminal should be convicted by law and if it is not proclaimed inwriting, the criminal could not be convited. Nevertheless, the legislation ofthe principle of a legally prescribed punishment for a specified crime isonly a beginning. For the sake of avoiding principle of a legally prescribedpunishment for a specified crime become a legal slogan .The principle of alegally prescribed punishment for a specified crime must carry out in thejudicial activity, That is the judicature of a legally prescribed punishmentfor a specified crime. Legal preferably carry into execution need acomplete legal rules, and need a complete judicial system to ensure the law.This essay, base on Chinese law present situation, analyse the origin of theprinciple of crimes; the value of the principle and existent problems ofjudicial practice in our criminal legislation, This paper try to find out thelegislative lack and to find the way to solve these problems.This article is divided into three parts, about 33,000 words altogether.The first part major discuss general theory of a legally prescribedpunishment for a specified crime. It start with the basic theory of a legallyprescribed punishment for a specified crime, And analyse the origin,meaning ,evolution and establish in Chinese of a legally prescribedpunishment for a specified crime. Along with the development of judicialpractice and change of society conception, "individual based" change to"society based". The evolution of legally prescribed punishment for aspecified crime from being absolute to being relative, and become thetrend of the reform of criminal law in the world. Ancient society cannotbring out the principle of a legally prescribed punishment for a specifiedcrime to assurance of human rights. In 1997 our country has abolished the Analogy System, and establish a legally prescribed punishment for aspecified crime.The second part major analysis the problem and cause of a legallyprescribed punishment for a specified crime. This essay consider, althoughcriminal code prescript the principle of legally prescribed punishments forcrimes is one of the three basic principles of the current criminal law inChina. But it can not say that China had established the criminal justicesystem guilding by principle of a legally prescribed punishment for aspecified crime. There are three factors which fluence the judicature of alegally prescribed punishment for a specified crime: Firstly, Criminal Lawexist some defects on Legislation certainty, Legislation justification andLegislation definition. Secondly, the interpretation to criminal law existsome defects, Major on legislative interpretation "waning" and judicialinterpretation "waxing", and legislation trend of judicial interpretation ofcriminal law. Judicial interpretation inevitable act against principle of alegally prescribed punishment for a specified crime. Criminal Law judicialinterpretation amend the partial contents of the Criminal Law clause, orcreate new criminal rules, or violat the basic principles of a legallyprescribed punishment for a specified crime, or violat the value of theprotection of human fights, etc. Thirdly, There are many affections on thejudicature of a legally prescribed punishment for a specified crime.Independence of judicaturc is the most important institution ensurence.Without independence of judicaturc, judicature of a legally prescribedpunishment for a specified crime cann't become realization. Base on thepresent judicial state, Administration, News ,inner organization of thecourt, and legal expert are affecting the independence of judicaturc ontheir own wayThe third part: major analysis the effective way to judicature of alegally prescribed punishment for a specified crime. Form the surfaceanalysis, If we want achieve judicature of a legally prescribed punishmentfor a specified crime, something has been done in the following fouraspects: Firstly, we should establish modern criminal judicature concept according to protection for human rights ensure. As regards thedevelopment of criminal penalty worldwide, the mitigation of the criminalpenalties turns out to be an inevitable outcome resulting from itsadvancement, and furthermore, an important trend of the reform ofcriminal law. Modern criminal judicature concept need Criminal lawultima ratio of penalty. Secondly, it is better to perfect criminal code underthe guiding of legally prescribed punishment for a specified crime, Needlegalization of the accusation in criminal law, To elaborate characteristicsof crime description, And preciseness vocabulary, detemlinancy inCriminal Law clause, and circumstances of crime, measurement ofpenaltyneed have maneuverability. Thirdly, the criminal law interpretationneed under legally prescribed punishment for a specified crime condition.We should enhance Criminal Law legislative interpretation, the quality oflegislative interpretation should be improved as well, and it is more betterto innovate judicial interpretation of criminal law. Fourthly, we shouldbuild a favourable environment of administration of justice, build judicialindependence and administration, the media supervision andindependence of judges harmony connection. |
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