Explained By The Theory Of Criminal Justice Retroactive Effect

China’s legal system, there is a special kind of legal system, namely, the judicial interpretation. It is authorized by the legislature, made a legally binding interpretation for the specific application of the legal issues encountered in the judicial practice. It has its own unique character and legal status and foreign case law is also different from the jurisprudence practiced in China is now the guidance system. In judicial practice, the behavior has not yet been determined for the judicial interpretation of criminal law occurred before the entry into force of its entry into force without trial or judgment can be applied over the question of a lot of the reason is that the judicial interpretation of our criminal law of its own retrospective the provisions of the force and there is no uniform standard, to a certain extent affect the impartiality and seriousness of the applicable law in the judicial practice in China. The Supreme People’s Procurator ate, the application of judicial interpretation of criminal law in China, has enacted the provisions on the application of the criminal judicial interpretation effectiveness. Therefore provides for the development of standards, in principle, a different one, the content is general and not comprehensive, there is a certain contradiction with each other, does not really solve the problem of judicial interpretation of the retroactive effect.This article is divided into three parts, totaling about33,200words.The first part describes the overview of the status quo with the doctrine of the judicial interpretation of the Criminal Law. In theoretical circles, scholars have generally judicial interpretation of the retroactive effect, the problem is divided into five cases to be discussed:First, for acts occurring before the entry into force of the criminal law, criminal law, judicial interpretations are binding; Second, judicial interpretation of criminal law binding occurred after the entry into force of the criminal law but whether the conduct itself has not been enacted; Third, the judicial interpretation of the existing judicial interpretation occurred after the commencement of the criminal law itself has not yet enacted, behavior, and also whether the new judicial interpretation of this has not yet processing acts as binding; Before the commencement of the new judicial interpretation, the relevant provisions of the old criminal law, the judicial interpretation of the possibility to continue to interpret the relevant provisions of the new criminal code is almost the same; Fifth, judicial interpretations and its implementation before the commencement of the handle closed with retroactive effect. More unified view of the first scholars, advocates the retroactive effect of judicial interpretation of criminal law and criminal law retroactive force consistent with the principles; For the second, third and fourth argument, from the Old Chief lighter that, for criminal new said that the distinction to say; for the fifth case, scholars have mostly advocated judicial explained without retroactive effect. Generally speaking, most scholars agree that judicial interpretation of criminal law or should be a retroactive effect, but differ in their specific use of stage and content. Only a small part of the scholars that judicial interpretation of criminal law to a complete denial of the retroactive effect, said that the judicial interpretation of criminal law does not exist a retroactive effect, or does not have retroactive effect, will be binding only for acts that occur after its entry into force.The second part of the article is to analyze judicial interpretations have retroactive effect from the three aspects of jurisprudence, law and practice. Based on the principle of legality and protection of human rights thinking, Retroactivity of Criminal Law should take the principles from the old Chief lighter. But the legal principle that judicial interpretation is not "law" can not be directly copied directly Retroactivity of Criminal Law principles. The judicial interpretation of criminal law dependence and hysteric’s, this feature determines the judicial interpretation should be relatively independent of time effectiveness and retroactive effect. In practice, the judicial interpretations have the refinement crime constitute a standard, are actually involved in the conviction and sentencing, and the function of the unified judicial practice. This function to compensate for the lack of legislation of criminal law, the protection of criminal law accurately executed in a timely manner to combat crime, improve citizens’ knowledge of the law has a very important role, has become the preferred legal basis for and guidance of the judiciary to handle cases. If the judicial interpretation does not have retroactive effect, then the judicial interpretation of these functions is compromised. The third part of our current judicial interpretation of the assessment, mainly from two major aspects. One is the different legal norms under the criminal law judicial interpretations have retroactive effect, Including:the retroactive effect retroactive effect, explained by (1)79of the criminal law and criminal justice under97the Criminal Code (2)97Criminal Law and the amendment of the Criminal Code of judicial interpretation. The second is the judicial interpretation of the same norms of criminal law have retroactive effect, including the retroactive effect of the cases (1) judicial interpretation promulgated the commencement of the provisions of the Penal Code explained (2) Criminal Judicial Interpretation on the interpretation of the Criminal Code provisions promulgated after the commencement of the retroactive effect of its own promulgated before the commencement of the case (3) judicial interpretation itself already entered into force before the commencement of implementation of judicial interpretation in the interpretation of criminal law came into effect, the new judicial interpretations have retroactive effect (4) judicial interpretation promulgated before the conclusion of the case, have retroactive effect. By the analysis of these types of circumstances, I believe that between the old and new criminal law, criminal law and the amendment should be strictly in accordance with the legislative law and criminal law provisions from the retroactive effect of old age for criminal responsibility "principle; for judicial interpretation of criminal law, old and new judicial explain the link between the principle of retroactive effect shall be in accordance with the age for criminal responsibilityAsk questions to solve the problem of judicial interpretation of criminal law retroactive effect may be small, but if not handled properly will inevitably lead to the instability of the foundation of our legal system, judicial practice, the confusion will result in unfair trials on the perpetrator. In this paper, to explore this issue, the judicial interpretation of the Criminal Law should implement the Retroactive Effect of limitation of prosecution claims, judicial interpretation, upon commencement should be retroactive interpretation of the criminal law in force without judgment cases force only to protect the exception of the behavior before they can choose the legal acts.