In this transitional period,the concept of legally protected interests in Chinese criminal legislation is changing with the imposition of new control measures that endow criminal law with new functions,including takin...In this transitional period,the concept of legally protected interests in Chinese criminal legislation is changing with the imposition of new control measures that endow criminal law with new functions,including taking an active part in social governance.Active legislation will not entail the systemic risk of excessive interference by criminal law.Criminalization does not conflict with criminal law’s concept of modest restraint.In terms of overall approach,we need to establish dynamic,rational and diversified legislative mechanisms for the future.In terms of specific methods,legislation must maintain an approach of actively intervention in the life of society,changing the current centralized legislative model.However,decentralized legislation should not necessarily adopt the tripartite model of the criminal code plus special enactments and auxiliary criminal law.Rather,it should construct a written criminal law system centered on the criminal code and supplemented by the law on minor offences,in parallel with criminal penalties and public security measures.This will produce a mechanism for the seamless incremental convergence of public security administrative punishment law,minor offences law,and criminal law.The net of justice is fine-meshed but its penalties are light.The addition of new crimes must uphold the rule of law,correspond to specific social situations,maintain an attitude of sensitivity and clarity toward lawlessness and regard criminal law as a last resort,in order to alleviate the pressures legislators currently face from the growing body of criminal law.展开更多
As a product of scientism and rationalism,the principle of nullum crimen sine lege has been subject to changing times and theoretical assumptions.In practice,therefore,it has not been fully able to play its role in pr...As a product of scientism and rationalism,the principle of nullum crimen sine lege has been subject to changing times and theoretical assumptions.In practice,therefore,it has not been fully able to play its role in protecting freedom and has constantly wavered over the determination of criminal punishments.Even though it has been constantly challenged,the principle of nullum crimen sine lege should be adhered to and renewed as an important principle of the modem rule of law.First,the principle of de lege lata is being questioned by theories of substantive law,and sources not in the form of law have become the de facto basis of criminal punishment.For this reason,it is necessary to reaffirm the nature of de lege lata as an exclusive source of law.Second,although the possible boundary of the meaning of criminal law texts cannot be clearly delineated empirically,one should not therefore reject the possible boundary of this meaning.The practice of delineating an objective boundary based on empirical facts should be abandoned and normative boundaries should be delineated and justified.Finally,the responsibility for judicial clarity should be recognized and accepted as a supplement to legislative clarity,and a two-tier system of legislative and judicial clarity should be developed.Here,the definite nature of criminal legislation should develop standards in terms of behavioral guidance and judicial restrictions,and clarity in criminal justice should start from the legislative text and establish general secondary rules to make the text more specific,bringing it ever closer to specific and particular case facts,and eventually establishing a relationship of subsumption between the legislative text and the facts of the case.展开更多
文摘In this transitional period,the concept of legally protected interests in Chinese criminal legislation is changing with the imposition of new control measures that endow criminal law with new functions,including taking an active part in social governance.Active legislation will not entail the systemic risk of excessive interference by criminal law.Criminalization does not conflict with criminal law’s concept of modest restraint.In terms of overall approach,we need to establish dynamic,rational and diversified legislative mechanisms for the future.In terms of specific methods,legislation must maintain an approach of actively intervention in the life of society,changing the current centralized legislative model.However,decentralized legislation should not necessarily adopt the tripartite model of the criminal code plus special enactments and auxiliary criminal law.Rather,it should construct a written criminal law system centered on the criminal code and supplemented by the law on minor offences,in parallel with criminal penalties and public security measures.This will produce a mechanism for the seamless incremental convergence of public security administrative punishment law,minor offences law,and criminal law.The net of justice is fine-meshed but its penalties are light.The addition of new crimes must uphold the rule of law,correspond to specific social situations,maintain an attitude of sensitivity and clarity toward lawlessness and regard criminal law as a last resort,in order to alleviate the pressures legislators currently face from the growing body of criminal law.
文摘As a product of scientism and rationalism,the principle of nullum crimen sine lege has been subject to changing times and theoretical assumptions.In practice,therefore,it has not been fully able to play its role in protecting freedom and has constantly wavered over the determination of criminal punishments.Even though it has been constantly challenged,the principle of nullum crimen sine lege should be adhered to and renewed as an important principle of the modem rule of law.First,the principle of de lege lata is being questioned by theories of substantive law,and sources not in the form of law have become the de facto basis of criminal punishment.For this reason,it is necessary to reaffirm the nature of de lege lata as an exclusive source of law.Second,although the possible boundary of the meaning of criminal law texts cannot be clearly delineated empirically,one should not therefore reject the possible boundary of this meaning.The practice of delineating an objective boundary based on empirical facts should be abandoned and normative boundaries should be delineated and justified.Finally,the responsibility for judicial clarity should be recognized and accepted as a supplement to legislative clarity,and a two-tier system of legislative and judicial clarity should be developed.Here,the definite nature of criminal legislation should develop standards in terms of behavioral guidance and judicial restrictions,and clarity in criminal justice should start from the legislative text and establish general secondary rules to make the text more specific,bringing it ever closer to specific and particular case facts,and eventually establishing a relationship of subsumption between the legislative text and the facts of the case.
