On The Retroactivity Issue Of Special Recidivist

The Eighth Amendment of Criminal Law have change the provision of specialrecidivist, expanding the range of special recidivist, and bring the issue ofapplication of law about how to determine special recidivist. Special recidivist referto two crimes, the pervious one and the latter one. When the actor commit the lattercrimes after the Eighth Amendment has taken affect, and the combination of twocrimes correspond with the provision of special recidivist of new law but not the oldlaw, which law to be used would be a question. The Supreme People’s Court saidthat if latter crime committed after the law has taken affect, new law would be used.But this answer is likely to violate the Law of non–retroactivity. It’s necessary tofind out the correct application of the law when we face the issue of retroactivity ofspecial recidivist.Historical method, text analyzing method and induction&deductive methodwere used in this paper. First, Two reasons make the retroactivity of specialrecidivist provision became a question. No.1, the legislation inevitably left the blankon many question, while our legislative technique needs to be improved, make theretroactivity issue of special recidivist cannot be solve by explanation. No.2, specialrecidivist and retroactivity is not the focal point of criminal law studies. Fewresearchers have deeply study these two field, let alone associate them. Furthermore,the retroactivity issue of special recidivist is a very small question, few people noticeit.Second, we suggest that scholars answer the question why the recidivist shouldbe punished more severe from3dimension, the Personal Dangerousness, the SocialHarm, and subjective culpability of the mind is defective. But these popular theoriescannot explain the question well. By the examination of the provision of specialrecidivist, and the analysis of criminal justice practice, the proper reasons should bethat the recidivist have worse capacity in experience the penalty, or simply that theactor in accordance with the provision of recidivist so that he/she should be punished more severe. However, for a comprehensive analysis, three theories wastaken, i.e. the theory of Personal Dangerousness, the theory of worse penaltyexperience capacity, and the theory of provision accordance.Third, the doctrine of Law of non-retroactivity advance with the times, fromprenotice&predictable theory to the theory of jus acquistitum, and the theory ofRule of Law. Under these doctrine, the retroactivity of special recidivist isunacceptable for its second evaluation of previous crime. It’s necessary to balancethe value of the Law of non–retroactivity and special recidivist to solve theirconflict.Forth, The value of special recidivist are to respond the human’s desire forsimple justice, to protect special social benefit, to prevent crimes, while the Law ofnon-retroactivity have great value of maintaining the order, protecting the freedom,and guaranteeing the equality. Compare the value of both, we can find that the Lawof non–retroactivity is more basic and crucial,In summary, we should choose when special recidivist conflicts with the Lawof non-retroactivity..