The Establishment And Substance Of The Principle Of Legality

This paper focuses on the process of establishment and connotation of theprinciple of legality in China for the purpose of exploring the basic rule in the process.On the basic principle of Marxist historical materialism, by taking the principle oflegality as an important part of the political superstructure and analyzing the socialand economic foundation and social patterns, it can be found that there is no principleof legality in ancient times, but experience of constraining the trial on the perspectiveof maintaining the monarchy. The principle of legality is the rationalist concept andprinciple of criminal law formed in modern times with the great development of thecommodity economy. The special social contradiction of modern Chinese societydetermines that the principle of legality could not be established in full accordancewith the West countries after being introduced into China. However, with China’sreform and opening up and the development of socialist market economy, it isnecessary to further establish and improve the principle of legality on the prospectiveof protecting human rights and restricting the power of punishment.This article analyzed the histories and processes of the origination, developmentand changes in western countries and the introduction, propagation and establishmentin China, in order to explore the historical process of the establishment of theprinciple of legality in China. It also used the method of comparison and pointed out that the differences in the connotation of development between China and the Westrestrict the different content of the principle of legality. The method of literatureanalysis and legal logic analysis is also used to make logical analysis and semanticanalysis on the principle of legality and the Penal Code in order to have a clear andaccurate understanding of the establishment of the principle of legality in China.The thesis has three chapters. The first chapter analyzed the development processof the principle of legality in the West and China, and compared the similarities anddifferences between the modernizations, to provide a better context to understand theconnotation in China accurately. The second chapter comprehensively summarized theform level, value level, substantive level and process level of the connotation of theprinciple of legality, and showed the richness and multi-faceted of the meaning. Thethird chapter talked about the perfection of the principle of legality in both legislationand criminal theory.The main ideas and innovations of this paper lies in that regarding the graduallyforming market economy and rational rule of law as the fundamental reason of theslow process of the establishment of the principle of legality, and grasp the meaningof the principle of legality from the relationship between form and substance, bodyand value, and entity and procedure. Nowadays, the formal rationality should bepersisted as the leading explanation direction. In order to achieve the constitutionalityand scientific of the principle of legality, it should be further oriented to legalizationand the rule of law.How to understand the concept of principle of legality in our criminal law is animportant problem in both theory and practice. So far, there are two kinds of study onthe principle of legality. One is analyzing from the logic constitute and the meaning ofthe statute which emphasis the legitimacy of the punishment power. The other is theanalyzing from the legal philosophy and legal theory which focus on the rationality ofthe punishment power. To sum up, there are four kinds of main explanations,“formative”,”substantive”,”value”,”procedure”. These four constitute theconnotation system of the principle of legality. We admit that the establishment ofprinciple of legality brings the significant meaning, at the same time; we should also admit that there are some shortcomings, conflicts and debates in the legal system.These shortcomings, conflicts and debates influence the way we define, understandand explain the principle of legality. Thus, we should establish it further.Firstly, we should define the rationality further, resolving the conflict betweenthe two expressions of the value, and push the unifier of validity and constitutionality.Only by these ways, can we improve the legal constitute and establish the coreposition of the principle of legality.Secondly, we should coordinate the principle of legality with the constitution ofcrime and the criminal explanation theory. Let the principle of legality be built clearlyin our thought, constitution, statute, and the rule of law.