Criminal Law Thinking from the Perspective of Constitutionalism

Author: Liu Shude
Publisher:
Publish Date: 2002-06-01
Features: Based on the current consensus that "governing the country according to law" is "governing the country according to the constitution," this book explores certain issues in criminal law from a constitutional perspective, such as the introduction of a "constitutional review" system in the criminal law field, the relationship between the operation of criminal power and national functions, the reshaping of a rule-of-law criminal law, the value judgment and filling rules of blank criminal law, the legislative deviation of the principle of "equality between crime and punishment," the reconstruction of the criminal law classification system, the criminal law expectations for the ethical value limit of "protecting family secrets," and the need to study criminal law "outside of criminal law" and "above criminal law." It forms the following belief: The values and spirit embodied by terms like "constitutional state" or "rule-of-law state" must be integrated into the design and construction of specific norms and systems in criminal law, administrative law, civil law, etc., to avoid being "castles in the air" or "mirages" and to truly have vitality.
This book explores issues related to criminal law from a constitutional perspective and proposes many new viewpoints, such as conducting "constitutional review" during the construction of criminal norms, introducing the categories of "authoritative criminal law," "free criminal law," and "rule-of-law criminal law," questioning the rationality of blank criminal offenses, specifying the filling of blank constitutive elements, and criminalizing the reasonable content of "protecting family secrets." It also offers "new" reflections on some long-standing issues, such as arranging the criminal law classification system from the perspective of constitutional basic rights protection, analyzing the constitutive elements of embezzlement from the perspective of constitutional equal protection of non-public economies, examining the operation mechanism of criminal power from the dual nature of national functions, and considering the quantitative model of crime descriptions from the perspective of reshaping a rule-of-law criminal law, among others.