Outline of Foreign Criminal Law

Author: Zhang Mingkai
Publisher:
Publish Date: 1999-04-01
Features: Introduction The "Outline of Foreign Criminal Law" comprehensively and systematically elaborates on the criminal law theories and typical cases of continental law countries from the perspective of new viewpoints and trends. The main content is divided into two parts: General Theory and Specific Theory. The General Theory includes: Criminal Law, Crime, and Punishment; the Specific Theory includes: Crimes against Individual Legal Interests, Crimes against Social Legal Interests, Crimes against National Legal Interests, etc. This book is based on the criminal law theories of continental law countries, with the criminal law theories of Germany and Japan as representatives, and is a relatively comprehensive review of foreign criminal law theories. It has important reference significance for China's criminal legislation, adjudication, and theoretical research. It is not only a must-read for university law teachers and students studying foreign criminal law but also a reference book for legislative and judicial personnel. Excerpt: Chapter 2 Basic Principles of Criminal Law What are the basic principles of criminal law? This is not a very clear question. Some scholars only consider the principle of legal punishment as the basic principle of criminal law, while others believe that the principle of legal punishment and the principle of responsibility are the basic principles of criminal law. Still, others argue that the principle of legal interest protection, the objective theory of illegality, and the principle of behaviorism are the basic principles of criminal law, and so on. Combining the views of scholars, the author introduces three basic principles: the principle of legal punishment, the principle of legal interest protection, and the principle of responsibility. These three principles correspond to constitutive requirement conformity, illegality, and culpability, respectively. Section The Principle of Legal Punishment I. The Content of the Principle of Legal Punishment According to the principle of protecting the predictability of citizens and the principle of popular sovereignty, the constitution of an act as a crime and the imposition of punishment must be based on the existence of law. This is the principle of legal punishment or legal punishmentism. However, the existence of laws punishing acts is not enough to satisfy the requirements of legal punishmentism. For example, punishing acts committed before the implementation of a law enacted later (ex post facto law) is unpredictable for citizens and therefore not allowed. Similarly, applying a criminal law provision to acts not directly stipulated by the criminal law provision, although it may have a formal basis in the criminal law provision, violates the requirements of legal punishmentism in essence. The above legalism, prohibition of ex post facto laws, and prohibition of analogical interpretation are the content of traditional legal punishmentism, known as the "formal aspect." However, now, the content of legal punishmentism has been expanded to require that the content of criminal law be appropriate and just. Criminal law that does not meet this requirement is unconstitutional and therefore invalid. This is known as the "principle of proper punishment" or "substantive due process," and is considered the "substantive aspect" of legal punishmentism. This principle prohibits unclear criminal laws (the principle of clarity), prohibits cruel punishments, and prohibits punishing acts that are not properly punishable (the principle of proper criminal law). Among these, prohibiting unclear criminal laws is the requirement of protecting the predictability of citizens and the principle of legislative supremacy. Prohibiting cruel punishments and prohibiting punishing acts that are not properly punishable are issues of the proper legal content of crime and punishment itself. The theoretical basis of legal punishmentism has traditionally been considered the doctrine of separation of powers and the theory of psychological coercion. The doctrine of separation of powers requires that the legislative body formulate laws, and the judiciary strictly adhere to the law in convicting and sentencing, thereby denying the doctrine of arbitrary criminal punishment. The theory of psychological coercion requires that citizens be forewarned of what acts are crimes and what penalties they will face before the act is committed. However, this theoretical basis only has historical significance. ① It is generally believed that democracy and human rights protection necessarily require the implementation of legal punishmentism. Democracy, as referred to by Western scholars, means that citizens themselves, through their representatives—the legislative body—decide what acts are crimes and what penalties should be imposed on them. Human rights protection, on the other hand, means that to ensure human rights, hinder citizens' freedom of action, and prevent them from feeling anxious, citizens must be able to predict the nature of their acts in advance. Therefore, what acts are crimes and what penalties should be imposed on them must be clearly stipulated in advance. It is not difficult to see that the theoretical basis now referred to by Western scholars is closely related to the traditional theoretical basis. ② II. Legalism Legalism in the principle of legal punishmentism first requires that the criminal law, as the basis for criminal punishment, must be written, which is the principle of written law.