On The Realization Of The Principle Of Legality Of A Crime In Our Country's Judiciary

The principle of legality is the most important principle in criminal law, and it’s an important distinction between criminal law in law society and that in society of men. The classic description of this principle by modern criminal law scholars is "Nullum crimen sine lege, nulla poena sine lege". Article 3 of Criminal Law (1997) brought this principle to legislation in China. However, the judicialization thereof is even more important than legislation, because legality will be idle talk without implementation in judicial practice. Thus this paper aims to discuss the judicialization of the principle of legality. It will focus on criminal trial as a start, analyze reasons of problems in current judicial practice, and propose countermeasures to address these issues constructively at last.Besides the introduction, the text concludes three parts:The first part is an overview of the principle of legality. It starts with the theoretical basis of legality, then sets forth the meaning, content and the embodiment in Criminal law of China. With the continuous development of theory in criminal justice, relative Legality (substantive side) gradually replaced the absolute Legality (the form side) and became the mainstream in worldwide criminal law reform. Article 3 of Criminal Law (1997) marked the codification of the principle of legality in China.The second part studies the status quo of judicial practice in China, and points out that judicial decisions have violated the principle of legality, and there are different judgments for similar cases, and different co penalty. The violation of this principle owes mainly to the defect in legislation, impertinence in judicial interpretation, imperfection in judicial system, the influence upon adjudication by public opinions, insufficiency in judge quality and so on.The third part raises basic ideas on implementation of the principle of legality. Firstly, we must transform judicial ideas and establish a modern concept of criminal justice. The use of criminal penalty should be abandoned in the case where means other than criminal penalty can lead to the fulfillment of the goal of protecting society and personal legal interest. Secondly, we must perfect legislative mechanisms, improve legislative technique and standardize criminal judicial interpretation under the guidance of the principle of legality. Improve the quality and quantity of legislation and judicial interpretation. Finally, we must improve the operating environment of justice, promote the unified leadership of human, finance and objects in judiciary below the provincial, and actively explore jurisdictional system properly. separated from administrative zoning to realize judicial independence. To improve the quality of the criminal judicial staff, build a harmonious media supervision environment.