Research On The Retroactive Effect Of Limitation Of Prosecution In Judicial Application

The retroaction principles of criminal law has experienced a development process from absolute prohibition of retroactivity to favorable retroactivity.In the principle of "application of the old law with the exception of a less punishment in the new law","application of the old law" embodies the spirit of the principle of statutory punishment for crimes prohibited by ex post law,and "with the exception of a less punishment in the new law" reflects the development trend of the light punishment to protect human rights and benefit the defendant,so it is followed by most countries in the world.The legitimacy of the establishment of the limitation of prosecution system is based on several theories,such as "improving speculation","quasi-punishment","regulating emotion and moderating","respecting the state of facts" and "annihilation of evidence",as well as its ability to limit the power of national penalty and protect human rights.The system of limitation of prosecution has the attribute of substantive law so there is theoretical basis of applying the principle of "application of the old law with the exception of a less punishment in the new law".Compared with the criminal law of 1979,the provisions of the criminal law of 1997 on the extension of the limitation of prosecution system are more stringent.For a case where a criminal act took place before 1997 and the lawsuit took place after 1997,the criminal law of 1979 should be applied instead of the criminal law of 1997 when calculating the limitation of prosecution.The amendment to the criminal law(?)and the interpretation on embezzlement and bribery have adjusted the crime of corruption and bribery.In cases of corruption and bribery where the limitation of prosecution has been changed due to the adjustment of statutory punishment,the limitation of prosecution shall be calculated according to the sentencing rules that are favorable to the doer.In other words,the limitation of prosecution shall also follow theprinciple of "application of the old law with the exception of a less punishment in the new law".