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Criminal Law retroactive force lighter Reconstruction of the Principle

Author: TangZuoJia
Tutor: TianHongJie
School: China University of Political Science
Course: Criminal Law
Keywords: Retroactivity of Criminal Law For criminal Retroactive ' Ban ' Drop criminal Criminal Adjudged Retroactive effect, relativism Retroactive effect, absolutism
CLC: D924.1
Type: Master's thesis
Year: 2008
Downloads: 94
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Abstract


China's criminal law is the issue of retroactive effect from old age for criminal responsibility, but the \make a final judgment, continue to be valid. \But this article has put forward a different opinion, this article considers the principle should be lighter reconstruct retroactive effect, choose retroactive 'mode instead of the existing prohibition' mode, so that the new law decriminalizing weak penalty of the provisions applies effective judgments. Article is divided into four parts, Parts I-III is the need for retroactive doctrine applies to the argument from both theoretical and practical, fourth part of the article is applicable to our retrospective 'some of the ideas in the system. Theoretical argumentation, this tradition of research on this issue from different perspectives, made this one across the Entity Law and Litigation Law is not enough to simply proceed from a particular aspect of research, we must take into account the entity program. The article first from the perspective of criminal law, retroactive 'choose from the Legality, criminal law, the three value targets, the purpose of punishment as a starting point to demonstrate: proposed retroactive doctrine to uphold and implement the protection of human rights in the spirit of Legality; better reflect the three criminal law of humanity, Humility, and fair value target; pointed out that the gap between the implementation of the sentence between the old and the new criminal law not conducive to the purpose of punishment - retribution and prevention from the negative side. Secondly, the article's theoretical innovation where - through re-interpretation of the applicable principles of traditional criminal res judicata, from the perspective of procedural law, the \The article maintains that the traditional view of retrospective 'misconception is that absolutism does not distinguish between res judicata in the retroactive effect for the retrial procedure to start the similarities and differences between these two issues: the pursuit of issue-specific form and value of human rights, efficiency essentially the same. Finally concluded: retroactive 'criminal res judicata consistency in the pursuit of value. The third part of the article is to demonstrate from the actual situation of the international and domestic. From the contrast of old and new criminal law, the existence of the gap between criminal, the global background of Penalty, as well as the introduction of the world's current retrospective principle relevant provisions of national elaborate on the topic. In particular, this paper proposes to establish the necessary objective factors of Penalty is both retrospective 'in the issue of Penalty, is retroactive' able to establish the carrier - the modification of criminal law in the context of mitigation of penalty, will lead to More new drop criminal retroactive doctrine itself is of Penalty system improved. The fourth part of the article is the idea of ??applicable retroactive doctrine. First pointed out that the retroactive application of the doctrine accompanied the process of mitigation of penalty will be a gradual process, the present can be achieved through the use of the existing system, in the actual implementation of the modifications retroactive 'and pointed out that the retroactive effect and several modes of res judicata, the compromise model is most suitable for our current situation. Article on retroactive principle of a system of simple design: designed for drop criminal special remission system; effective use of existing pardon system to help implement; restrictions on retroactive principle applies - the establishment of the application system period of the system.

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