Realized Dilemma And Resolution Of The Principle Of Definitude Of Criminal Law

The principle of definitude of criminal law is one of the derived principles of the legality,which is of great significance to both legislation and judicature.Our country formally established the principle of legality in 1997,and carries on thorough research,however,for the principles of definitude,we have not been paying enough attention on it both in legislation and in judicial practice.There are still some difficulties which influence the realization of the principle in the current criminal law,which affects the fairness,stability and the prediction possibility of the national.Based on the legislation and judicial practice in China,this article points out realization plight and resolution of the principle of definitude.In addition to the introduction and conclusion,this paper is divided into the following four parts:The first part is an overview of the principles of definitude.Firstly,the proposition of the principle of definitude.At the beginning of the principle of legality prescribed,it emphasizes that only the law can decide to prohibit or punish the behavior of citizens,and it emphasizes on the limitation of the state's power to punish,at this time the clarity of the principle is affiliated to the principle of this form.Later the principle was influenced by the principles of American due process.The principle of definitude became an independent derivation principle and accepted by all countries in the world.In our country,the study of the principle of definitude was carried out with the enactment of the criminal law in 1997.Secondly,the implication of the principle of definitude,from the position and attributes of the principle of definitude,we can make the following definition: the principle of definitude is derived from the principle of legality and requires the form of criminal law and the essence should be clear,precise,and should be a principle for legislation and guide judicial.It has the following three characteristics: in content,the form and substance of criminal law must be clear;On the request,the criminal law provisions must be clear;The principle of explicitness of criminal law runs through criminal legislation and criminal justice.Thirdly,the value of the principle of definitude,under the requirement for principle of legality,definitude of great significance in the field of criminal law,the safeguard of the citizen's safety and freedom,which limit the value of the penalty power.The second part is the basic content and judgment standard of the principle of definitude.First,the basic elements of the principle of definitude include the clarity of sin and the clarity of punishment.The definition of the crime includes clear crime,clear crime constitution and clear crime.The definition of punishment includes the type of penalty and the definite extent of penalty.Secondly,the judgment standard of definition.The judgment criterion is the core of the principle of definitude,and it is also the main problem to solve the dilemma of the principle of definition.The judgment criterion of the clarity is determined from the two aspects of the judgment criterion and the judging scale.Clarity of the judge standards based on what position to judge whether a certain norms of criminal law is clear.The author thinks that to the average person is able to predict the consequences of their actions,whether legislators to law "the greatest possible clarity" and legal practitioners can be explicitly comprehensive judging by explaining.It is clear that the criterion of the accuracy of the criminal law is clear,and the author believes that the possibility of understanding and prediction of criminal law is clear.The third part is about the dilemma of the principle of definitude.Firstly,the legislative dilemma of the principle of clarity.Legislative difficulties include two aspects: the unclear of crime and punishment of sin not clear in theory and practice.The impact of clarity principle mainly includes: out terms,the components of the specification factors and quantitative factors,blank,and simple.In the aspect of the accuracy of the sentence,the impact on the clarity is mainly including the absolute uncertainty of the existence of statutory punishment and the ambiguity of the penalty.Secondly,the judicial dilemma of the principle of definitude.The judicial dilemma is mainly manifested in the ambiguity of judicial interpretation and unclear criminal judgment.The fourth part,the solution path of explicitness principle realizes the predicament.Firstly,the legislative path of clarity is achieved.First,to clarify the legislative language,the criminal law should be expressed in precise,clear and concise language.Second is to improve the legislation technology,lawmakers in setting the norms of criminal law,how to express and how to set legal punishment for crime crime constitution is undoubtedly the most can reflect two aspects of legislation technology and performance.In the aspect of crime constitution,one should improve the way of expression of the crime,and try to use the crime in Syria.On the other hand,there are ways to improve the expression of the crime,with fewer blanks and simple crimes.In the aspect of legal punishment,the penalty system for absolute uncertainty is proposed,and the penalty system is proposed to be modified as a ratio fine,a multiple fine and a certain amount of fine.There is no specific operation method for the criminal law,which leads to the ambiguity of the penalty.Third,the specific solution to the legislative area is not clear.For the specific solution to the bottom of the pocket,we should use the bottom clause carefully and reasonably.A common practice in a crime should be as detailed as possible,and only if it is possible to make some serious omissions in the use of enumerated rules.For the specific solution path of the constitutive elements of the specification,the application of the constitutive elements of the specification should be limited.It is necessary to adhere to certain legislative principles when it is necessary to adopt the constitutive elements of norms,so as to make the elements of the specification more explicit.In view of the quantitative elements,the clarity of the criminal law is relatively clear,through legislation "qualitative","judicial interpretations" quantitative way clear is obviously a very good choice,so the existence of quantitative factors is not in violation of the clarity of the criminal law.Thirdly,the judicial path to the principle of clarity.First,to improve judicial interpretation,first of all,follow the legislative intent.Second,can no longer use ambiguous language,should be thorough and thorough,not one-sided oversight.Strictly abide by the principle of "legislative interpretation,judicial interpretation".Finally,the relationship between the activism of criminal justice interpretation and judicial passivity is dealt with.The second is to perfect the application of the case guidance system,to judge the case for the judge,and to provide the template for reference.Third,improve the quality of judicial personnel and improve the selection system of judges.Finally,the conception of the unconstitutional review system.Our country can be set up under the standing committee of the National People's Congress unconstitutional examination organizations,whether to conform to the principle of definitude before law enforcement for review in advance,the judicial organs at all levels found in the process of case applicable law is not clear and post-mortem examination,unconstitutional examination organizations shall have the right to the penal code,the amendment of criminal law,the accessory criminal law norm,the legislative interpretation of criminal law and judicial explanation of "projects" the clarity of the direct to make a clear decision.