On Retroactivity In Criminal Law

In our country, the criminal law stipulates that application of the old law with theexception of a lighter provision in the new law is the principle of retroactivity ofcriminal law. Applying the old criminal law is the obedience by the principal oflegality. Applying the new criminal law with a lighter provision is based on the valuesof tolerance and humanitarian embodied in the modern criminal law. Under theinspection of judicial practice, applying the new criminal law with a lighter provision,prescribed in article12of the1997Criminal Law, has two problems that needed to beconsummated: First, the criteria for judging what belong to the lighter provision;second, in what cases could the new criminal law with a lighter provision be applied?The principle of retroactivity is the most important derived principle of the principleof legality. So the clarification of it has practical significances. However the academiccommunity pays insufficient attention to this problem. The thesis targets forimprovement of legislation of the principle of retroactivity of criminal law, throughrigorous arguments by dialectical analysis and value analysis.The thesis is divided into four parts, studying the principle of retroactivity ofcriminal law:The first part sets forth the basic knowledge of the principle of retroactivity ofcriminal law. It mainly clarifies the definition of retroactivity of criminal law,discusses the theoretical nature of retroactivity, sort out the theoretical basis ofretroactivity. Examine the current law with the above theoretical basis, we could findout the defects: the criteria for judging what belongs to the lighter provisions and therange of cases in which new criminal law with a lighter provision should be appliedare not completely prescribed.The second part discusses the criteria for judging what belongs to the lighterprovisions. The Criminal Law defines the criteria for judging the lighter provision totwo items: the act is not guilty under the new law and the legal penalty of the new lawis lighter, excluding regulations of voluntary surrender, rendering meritorious service,recidivist, combined punishment for several crimes, suspension of sentence,commutation of punishment, parole etc. Thus the Supreme People’s Courtpromulgated judicial interpretations after the implementation of Amendments to the1979Criminal Law and1997Criminal Law, to solve the relevant problems. Butthe judicial interpretations are incompatible, holding different views on retroactivityof the above regulations. This part emphasizes on whether the implementation of theprovisions of suspension of sentence, commutation of punishment, and parole shouldobey the principal of retroactivity, and elaborates on the implementation ofretroactivity of provisions of recidivist and combined punishment for several crimes.All regulations of conviction, sentencing, execution a crime, which are relevant to thesubstantial interests of a criminal, should be properly applied to judge the lighter law.Thus there should be explicit and uniform prescription in Criminal Law concerningcriteria judging the lighter law.The third part researches into the range of cases in which new criminal law witha lighter provision should be applied. Should the cases that have been sentencedbelong to that range? If yes, is there is any restriction? The current Criminal Lawstipulates that the new law has no retroactivity on the sentenced cases. It stands on theside of stability and authority value of law, lack of considering protecting the interestsof criminals. When there is a conflict between stability, economic litigate, which arethe values of the current law, and protection of human rights, modesty, humanitarianvalues, stability and economic litigate values would not always be prior. Under thebackground of the tendency of mitigating penalty in the modern world, protection ofhuman rights, modesty, humanitarian values of criminal law is in accordance withsocial development need. So the new criminal law with a lighter provision should beapplied in some of the sentenced cases. Except the non-guilty provisions in a new law,the non-death penalty provisions should also be retroactive. Then the right to life ofthe criminals could be protected, and the values of the criminal law, modesty andhumanitarian could be completely exemplified.The fourth part puts forwards suggestions to the amendment of article12of theCriminal Law. Based on the theoretical clarification and demonstration in the formerparts, the thesis proposed the concise legislation to improve the comprehension andimplementation of “application the new law with a lighter provision”.