On The Criminal Judicial Explanation Of The Retroactivity

In the past, in the theory of criminal law on the use of the word" retroactive", are only applicable to criminal code, rarely involves the criminal legal norm itself, its main body is only limited to the criminal law. In judicial practice, the criminal legal norm itself the retroactive force is the public security organs, procuratorial organs, judicial organs and other judicial officers, lawyers concern and research object. Undeniable, in recent years of judicial practice, the judicial interpretation of criminal law retroactivity is objective existence, but are often ignored or omission of judicial personnel. The judicial interpretation of criminal law is applicable to the prior to the effective date of the case, the procuratorial organs and the judicial organs to handle criminal cases, conviction and sentencing has significant legal significance. Because there are different theoretical basis, law circles of our country, academic circles on the retroactivity of criminal judicial interpretation there is a lot of controversy. China s criminal judicial interpretation should be retroactive? If has retroactivity should take what principle? The purpose of this paper is to put forward the problem of thinking.This paper is divided into three parts. The first part to introduce the specific case way led to China’s current criminal judicial interpretation performance is out of the question. The first case of major labor safety accident crime judicial interpretation, can be seen in the judicial interpretation of criminal law have retroactive effect on the case of sentencing produces very big effect. In second about buying and selling stolen case of public prosecution case, the judicial interpretation of criminal law have retroactive effect on the qualitative case impact. Third on bribery amount of judicial interpretation of the case, the criminal judicial interpretation have retroactive effect directly affect the case of sentencing. Fourth on a suspected of making out special invoices for value-added tax crime cases, the abuse of judicial interpretation will damage the party’s power. The fifth is about the embezzlement case, in this case can be seen on the same behavior, different organs can make different interpretations, therefore, using different interpretations of cases arising from completely different results, therefore, should use what level of effectiveness of interpretation? Different levels of interpretation have retroactive effect? In sixth cases, criminal judicial explanation in China has exceeded the explanatory scope, and began to make law. This kind of judicial interpretation can be applied? Whether have retroactive effect? In seventh cases, the judicial interpretation of criminal law is not only on the law content explanation. From each case to choose different retroactivity principle to case outcomes, conviction and sentencing effect, so that the choice of the criminal judicial interpretation have retroactive effect is thoughtful, also seen in our current criminal judicial interpretation problems.The second part is the first to make the definition of the retroactivity of criminal judicial interpretation. Then combed to our country on the judicial interpretation of criminal law retroactivity has two kinds of point of views-positive and negative. Then it analyses the judicial interpretation of criminal law retroactive mechanics field of retroactive effect of several theories, on every point of view has added its own views and studied each kind of theory in the use of the advantages and disadvantages.In the third part, from the different theory, analysis summed up his views, view on criminal judicial interpretation should be taken from old and mitigating the interpretation, and to explain the nature and definition of criminal justice, standard of value choice, and safeguard human rights as the basis, supporting the selection principle.This innovation is analysed in the application of criminal judicial interpretation of the retroactivity of each theory, the influence that bring to the society. But I regret not solve the retroactivity of criminal justice and the construction of the procuratorate attitudes on this issue and as a watchdog for responsibility.