| The limitation period for prosecution,as criminal law provided,is the valid period when criminal liability are investigated by judicial authorities.Since it concerns whether to start criminal procedure,and also concerns vital benefits of people,the beginning and ending points of the period turn to be of vital importance.Since the starting point is cleared,research should be focused on when to end the period and how to judge the facts which determining maximum prescribed punishment.However,when to end the period is not regulated in Article 89 of criminal code,in current judicial practice,the criteria of when to stop the lapse of time are ambiguous and conclusions are greatly different,especially on what degree shall be testified the facts that correspond to the maximum prescribed punishment of a crime,is not clear in criminal law,all these questions urgently need to be solved.As the limitation period for prosecution is not in the theory of crime and punishment,the realm of it lies in the connection of substantial law and procedure law,no much attention was paid to it.Current theories and conclusions are insufficient which proves the weakness of theoretical research on criminal statutes.Obviously,to clarify the ending point and the facts that correspond to the maximum prescribed punishment,is of valuable significance in theory and practice.The paper divides into five parts,about 34,000 words altogether.The analysis on the legislation and evolution of the limitation of prosecution was illustrated in the first part.Based on different theoretical definitions about the concept of the limitation of prosecution,a conclusion was drawn as follows: “Limitation of Prosecution” refers to the term of validity within which state organs or individuals having rights to complain can prosecute to the court for the doer's criminal liabilities,resulting from which people's court will reject the complainant's appeal to prosecute the crime.According to the above,relations and differences between the limitation of prosecution and some concepts regarding the criminal law such as retrospective effect and pardon were analyzed in detail.Finally,comparative analysis on legislation stipulations at home and abroad was discussed to lay a foundation for subsequent demonstrations about connotations and key points of the limitation of prosecution.The second part is the clarification of the major theoretical basis for terminating the crime prosecution.Firstly,termination of the crime prosecution specifically embodies the modesty of the criminal law.Failing to prosecute the crime for a long period,the social relationship has been recovered to a steady and orderly status.The criminal,as the final means,is no longer a necessity.Secondly,as the time passes,the victim and his family feels slightly relieved from the sense of suffering from the harms.Moreover,the social public's panic brought about by the crime has been gradually decreased and the sense of security they jointly maintain have resumed.In such a circumstance,the criminal law's mechanically implementation may give rise to a second hurt to both the doer and the society.Secondly,the criminal,serving as a mandatory tool adjusting the relationship between the individual and the nation should be implemented in an equal and efficient term.However,excessively long period will make it difficult to obtain the evidence,which will directly affect the accuracy and completeness of the judgment.Facing the challenge by the current shortage of judicial resources,setting limitation of prosecution is an effective medium to unify justice and efficiency.Two basic points for determination of the crime prosecution was demonstrated in the third part.They are determination time-point and corresponding “maximum prescribed punishment” fact.Firstly,related views in current academic circle of criminal law were teased out and judged.On the basis of the criminal essence and combining the complicated types and features of criminal cases,the article proposed that to what extent the criminal act infringe the legal interests and to what extent it put the legal interests in danger should be the standard to decide the time-point for the determination of the crime prosecution.Secondly,the terminal time-points for the limitation of prosecution were determined in accordance with three types: those escaping from investigation or trial after case-filing and may be sentenced to ten years or more in prison,the counting will be ended since the date of case-filing;those who may be sentenced to ten year or more and those who do not result in substantial harms or major hazard and may be sentenced to less than ten years,the counting will be ended since the date of initiating a public prosecution;for cases of private prosecution,the counting will be ended since the date when the court accepts the case.Thirdly,after teasing out criminal law and judicial explanations as well as guiding cases,the fact scope corresponding to the “maximum prescribed punishment” was determined and the standard to prove the fact was defined.The article deemed that the standard to prove the fact for “maximum prescribed punishment” should be equal to that for the prosecution requirements.In the fourth part,the limitation of prosecution for two types of joint offenders was analyzed.From an overall view,the term of validity of the prosecution for joint offenders should be determined in accordance with their individual measurement of punishment for their acts.The limitation of prosecution for each joint offender should be counted simultaneously and the terminal time-points should individually comply with their possible “maximum statutory penalty”.However,special judgment rules should be adopted in the following two circumstances.The counting of the limitation of prosecution for the doer who commit the crime of organizing,leading and jointing underworld-nature organizations or organizing,leading and jointing terrorist organizations differs from those for normal joint offenders.According to the principle of “Not guilty without stipulation in explicit terms”,leaders or organizers who quitted before the implementation of the criminal law in 1997 should not be held criminally liable for the crime of organizing,leading underworld-nature organizations.Organizer or leader should be held criminally liable for the criminal acts committed by ordinary members who quitted before the implementation of the criminal law in 1997.While they may be free from the criminal liability if the limitation of prosecution is exceeded.The fifth part is a general conclusion of this article,which put forward disposal suggestions for the case introduced at the beginning of the text. |
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