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The Theory Of The Principle Of A Legally Prescribed Punishment And Judicialization

Posted on:2013-03-07Degree:MasterType:Thesis
Country:ChinaCandidate:Y R ZhangFull Text:PDF
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As the basic principle of the current criminal law, the legally prescribedpunishments for crimes is the result of the capitalist’s struggle against the feudal system.It is an very important sign which is used to make a distinction between the legalsociety and autocratic society and the guarantee to the implementation of the rule ofcriminal law. According to its significance in realization of the rule of criminal law, it’svery necessary to understand the profound meaning of the principle and to research theway to implement the principle in the practice of legislation and jurisdiction. Theestablishment of Article3in the new PRC criminal law means that China has made thelegislation of the principle.At the same time, it is a landmark on our democratic road.However, the legislation is just the beginning on the road of our criminal law legislation.It is very necessary that the principle must be carried out in the judicial activity which isnamed for the judicature of the principle. Under the background of the rule by law inChina, this paper makes a review of the basic principle’s origin; researches its value anddiscusses the weakness of the legislation of the principle and the obstacles during ourjudicial practice. In the later part of this essay, we will try to find out the way to solveproblems,in order to push forward the process of rule of law.This paper consists of five parts.The introduction part is about the background of thesis-choosing, the status andsignificance of the research and the main emphasis of this research.The first part is an overview of the principle of legally prescribed punishments forcrimes and its realization in the legislation of our country. It starts with the presentnomocracy theory and makes a review of the basic principle’s origin and the process ofthe principle’s legislation,and researches its value.The second part discusses the weakness of the principle’s legislation and theobstacles during our judicial practice. Although the legally prescribed punishment for aspecified crime has established in Chinese, it doesn’t mean that our country hadestablished the criminal justice. There are three factors that impact the the principle’sjudicialization. Firstly, criminal law’s defects clog up the principle’s judicialization..Secondly, criminal law’s judicial interpretations have weaknesses which include the lack of legislative interpretation and the offside of judicial interpretation. Thirdly,independence of judicaturc has got the concussion of many sided and influence.According to the present judicial situation, Agencies, News always have effect ions onthe independence of judicaturc.Based on what have been discussed above, the third part will discuss the way tojudicature of a legally prescribed punishment for a specified crime. Firstly, we shouldestablish legal faith and modern criminal judicature concept in order to to protection forrights ensure. Secondly, we should make the criminal law interpretation under thecontext of legality. We also need to improve the legislative interpretation’s quality andreform the legal system. Thirdly, we need to build a harmonious justice condition and aharmonious connection between different fields.The conclusion is a summarize of the paper.
Keywords/Search Tags:the criminal law legislation, a legally prescribed punishment for aspecified crime, judicial interpretation, the independence of judicature
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