The Doctrine of Legality of Crime and Punishment

Author: Liu Xuemei
Publisher:
Publish Date: 2005-03-01
Features: The principle of legality in criminal law is both an old topic and a new issue. Since the Magna Carta of 1215 in England, it has undergone a historical process of emergence, development, and refinement, and it can be said that this process is still ongoing today. Especially for us, the principle of legality in criminal law was only recently established in China's Criminal Code, making this process of development and refinement even more important. Therefore, it is necessary to revisit this topic and discuss it in a serious and detailed manner. The classic formulation of the principle of legality in criminal law is "No crime without a law, no punishment without a law." Although this formulation reveals the core content of the principle of legality in criminal law to a large extent, as the principle continues to develop and refine, this formulation increasingly leads people to grasp only the form of legality in criminal law while missing its essence. The so-called "No crime without a law, no punishment without a law" generally refers to the principle that what constitutes a crime and what punishment should be imposed for such a crime must be explicitly stipulated by law in advance. If the law does not prescribe a certain behavior, even if it is highly harmful to society, it cannot be convicted or punished. Obviously, this is very easy to achieve in legislation. But does merely achieving this in legislation mean that the principle of legality in criminal law has been established in a country? The answer is no. Therefore, the establishment of the principle of legality in criminal law is not only reflected in a country's legislation but also in its judiciary and, more importantly, in its concepts. Only when the concept of legality in criminal law is firmly established can it be said that the principle has truly been established, and this is where the essence of the principle lies. From a historical perspective, in developed Western countries, the concept of legality in criminal law was established before the legal principle itself, and this concept was deeply rooted in people's minds. In China, it is said that the legal principle of legality in criminal law was established first, followed by the issue of establishing the concept of legality in criminal law. As of the current situation, the concept of legality in criminal law is only established in the minds of some experts and scholars. For the broader legal professionals and even the general public, it will still take a long time to establish this concept. Without establishing the concept of legality in criminal law, even if there is the formal principle of "No crime without a law, no punishment without a law," it will ultimately undermine the principle of legality in criminal law in both legislation and the judiciary. Because legislators can always create an unjust law to lead the principle of legality in criminal law astray, pursuing actions that should not be pursued, making the principle of legality in criminal law an accomplice to injustice. In the judiciary, even if the system of analogy is explicitly abolished, judges can still violate the principle of legality in criminal law in the process of legal interpretation or exercising their discretion, causing the principle to fail in the judicial process. In our country, where discretionary criminal justice has a long history, how to truly implement the principle of legality in criminal law in legislation and the judiciary after first establishing the legal principle and then finally establishing the concept in the mind remains a new challenge. What this book seeks to address is precisely this point.
Author, February 2005