A Study On The Principle Of Retroactivity Of Criminal Law In China

With the rapid development of our society,the phenomenon of crime is becoming more and more complicated.There are some new crimes with social harmfulness,and some already harmful acts are no longer threatening or becoming less harmful in today’s society.How the new criminal law would be applied to previous acts,namely the question of the retroactivity of criminal law.The retroactivity of criminal law,also known as the non-retroactivity of law,refers to the question of whether,if applicable,the act that occurred before the entry into force of criminal law is applicable.If not,there is no traceability.In 1979,the criminal law of our country first stipulated the principle of criminal law traceability from the old and lighter,and since 1997,criminal law has been applied.The principle of retroactivity not only solves the problem of the new and old scope of application when the law changes,but also is the important principle of maintaining social fairness and justice and protecting civil rights and freedoms.The research of criminal law traceability in our country is not very deep,and the importance and depth of the research is not quite as good as that of other countries in the world.Although the current criminal law of our country provides for the principle of the application of criminal law traceability,its formulation is simple and the details are vague.Since the promulgation and implementation of the amendments to the Criminal Law(IX)of 1 November 2015 and the Interpretation of Certain Issues on the Law Applicable to the Administration of Criminal Cases of Corruption and Bribery of 18 April 2016,many new perplexities have arisen from the application of the old principle of equal treatment.Therefore,through combing and analyzing the discussion and research on the principle of criminal law traceability,this paper puts forward some suggestions.In addition to the introduction and conclusion,this paper is divided into three parts:The first part: Overview of retroactivity of criminal law.This section contains four aspects of the concept of criminal law retroactivity,theoretical basis,historical development and application principles.Regarding the concept of retroactive force of criminal law,there are different views in the academic circles on whether and to which decisions have been made.This paper believes that the applicable scope of the retroactivity of the criminal law in China should include the completed judgments.The thesis combs the theoretical basis of the retroactivity of the criminal law,and the historical development of our country’s criminal law from ancient times to the Republic of China and then to New China.It is clear that the retrospective power of the criminal law has the value orientation of safeguarding human rights and protecting civil liberties.The principle of reconsidering oldness and lightness followed by the retroactivity of the criminal law in our country is an applicable principle that conforms to the international social value standards and suits our national conditions.The second part is about the principle of traceability of criminal law.It discusses three issues related to the principle of traceability:The first is the problem existing in the criterion of "lighter".First of all,by combing the legislation and judicial application of other countries in the world,it is found that it is unreasonable for our country to only regulate the sentencing of a criminal sentence without involving the execution part of a criminal punishment.Secondly,the standard of execution of penalty is considered to be a procedural rule.In principle,the new principle should be applied,but the principle of both the old and the lighter should be applied as an exception to the principle of commutation and parole,which may affect the duration of punishment.Finally,in the application of old and new criminal laws,there is a dispute over whether to adopt the principle of integral application or mixed application.Second,there are problems in the scope of application of the principle of "lighter".The first is the question of the relationship between power and res Judicata.There are three views in the theoretical circle of the two,namely,separatism,relativism,and eclecticism,among which eclecticism is more conducive to the fair justice of the law and the full guarantee of human rights.Second,the question of retroactivity in the retrial process and the applicability of the old and lesser principle in the trial supervision procedure are also worth discussing.Although the judicial interpretation provides for the application of the act law in the retrial process,some scholars believe that the choice of the law in favour of the perpetrator on the basis of the lesser principle does not violate the stability and authority of justice and that the retrial should be based on the law at the time of the act.However,as in the case of res Judicata,the new law may be applied retroactively in both cases where the new law considers the death penalty to be innocent.Third,the judicial interpretation of criminal law traceability.The author agrees that the judicial interpretation of criminal law in our country,as a dependent interpretation of criminal law,should not have retroactive effect,but under the special circumstances of our country,judicial interpretation has the nature of "quasi-legislation",which is an indispensable tool in judicial cases,so the question of the principle of retroactive effect is worth discussing.The third part: the suggestions to perfect the principle of traceability of criminal law in our country.On the basis of the theoretical combing and argumentation of the principle of "lighter" and the scope of application,the author puts forward the legislative formulation proposal on article 12 of the criminal law,which stipulates that "lighter" is the most favorable to the perpetrator,and extends the "lighter" scope of application to the new law which does not consider it a crime.