The principle of legally prescribed punishment for a crime is the requirement and embodiment of safeguarding human rights in modern society. The function of criminal law is to crack down on crime and protect the public from the perspective of the state; From the public point of view, we should limit state power and protect human rights. On the one hand, a legally prescribed punishment for a crime must be convicted and punished according to law, which reflects the state's protection of civil rights; On the other hand, if the law does not stipulate that it is a crime, it shall not be convicted and punished, which embodies the restriction of state power and the protection of human rights. Therefore, the principle of a legally prescribed punishment for a specified crime is an organic combination of the functions of criminal law, and its ultimate goal is to protect human rights.
The principle of a legally prescribed punishment for a crime requires law enforcement agencies and law enforcement personnel to carefully grasp the characteristics and specific elements of a crime according to objective facts, and strictly distinguish between crime and non-crime, and between this crime and that crime, so as to make the conviction accurate, reasonable and well-founded, and the judgment can stand the test of objective facts and time; The principle of a legally prescribed punishment for a specified crime excludes the habit and analogy of handling cases, hearing cases and judging cases, and requires those who handle cases, hearing cases and judging cases to be strictly based on facts, taking bills as the criterion, not exceeding their authority, not handling cases, hearing cases and judging cases with personal understanding and consciousness, truly "abiding by the law, strictly enforcing the law, and prosecuting those who violate the law" and faithfully following the "provisions of the law". If the law does not clearly stipulate criminal acts, they shall not be convicted. The embodiment of the principle of a legally prescribed punishment for a specified crime in China's criminal law Article 3 of the Criminal Law stipulates: "If the law expressly stipulates that it is a criminal act, it shall be convicted and punished according to the law; If the law does not stipulate criminal acts, it shall not be convicted and punished. " The content of this principle has two aspects: on the one hand, only when an act is clearly defined as a crime by law can it be convicted and sentenced, and it must be convicted and sentenced in accordance with the law; On the other hand, any act that is not defined as a crime by law cannot be convicted and sentenced. That is, "there is no express stipulation that there is no crime, and there is no express stipulation that there is no punishment." This provision declares the codification of the principle of a legally prescribed punishment for a specified crime in China's criminal law, which shows that the value orientation of China's criminal law has changed from emphasizing the protection of social interests to paying equal attention to the protection of society and human rights, marking the great development of China's criminal law. The ideological origin of the principle of a legally prescribed punishment for a specified crime can be traced back to Article 39 of the Magna Carta signed by King John of England in 12 15: "No free man shall be detained, imprisoned, confiscated of property, deprived of legal protection, exiled, injured, searched or arrested, except in accordance with the law or the provisions of domestic laws." 17 and 18 centuries, bourgeois enlightenment thinkers put forward the idea of a legally prescribed punishment for a crime in view of the dark reality of arbitrary punishment in feudal criminal law, and called it separation of powers; The idea of a legally prescribed punishment for a crime based on the theory of psychological compulsion and the theory of human rights protection is more systematic and richer in content. After the victory of the bourgeois revolution, the idea of a legally prescribed punishment for a crime changed from theory to law, and was confirmed in the bourgeois constitution and criminal law. Because this principle conforms to the development trend of democracy and rule of law in modern society, it has become the most important principle in the criminal law of all countries in the world. The principle of a legally prescribed punishment for a crime was first found in article 10 of the Qing Dynasty's Criminal Law: "Anyone who can't commit a crime will not commit any act." China's 1979 Criminal Code did not stipulate the principle of a legally prescribed punishment for a specified crime, but it was basically implemented in terms of criminal legislation and criminal justice at that time. However, since Article 79 of 79 Criminal Law stipulates the guilty analogy system, strictly speaking, China's 1979 Criminal Law implements the principle of a legally prescribed punishment for a crime, supplemented by analogy system. 1the current criminal code revised in March, 1997, starting from the need of perfecting the criminal rule of law and protecting human rights in China, clearly stipulated the principle of a legally prescribed punishment for a specified crime in the criminal code, and abolished the analogy system. This principle is conducive to protecting the legitimate rights and interests of citizens internally, and can fully reflect the image of China's protection of human rights externally. It marks the important development of China's criminal law and is a great progress of modern criminal legal system. China's criminal law embodies this principle from beginning to end. First, on the whole (1), the criminal law stipulates the concept of crime. 1997 article 13 of the criminal law stipulates: "all acts endangering state sovereignty, territorial integrity and security, acts of splitting the country, acts of subverting the people's democratic dictatorship and socialist system, acts of undermining social and economic order, acts of infringing on state-owned property or property collectively owned by working people, acts of infringing on citizens' private property, and acts of infringing on citizens' personal rights, democratic rights and other rights. The legal concept of this crime fundamentally answers the question of what acts are crimes and why these acts are crimes. This is the general standard to distinguish crime from non-crime. This definition emphasizes that the social harmfulness of behavior is the essential feature of crime, and defines the behavior with social harmfulness as the violation of criminal law, organically unifying social harmfulness and criminal illegality, thus making the concept of crime have the following positive significance: First, legislators selectively classify the behavior with social harmfulness as criminal illegality, so that social harmfulness can be clearly and concretely reflected in the criminal law norms, which provides a legal basis for investigating the criminal responsibility of criminal behavior with social harmfulness and judicial personnel to understand its harmfulness. Secondly, to reflect social harmfulness through criminal illegality should take the provisions of criminal law as the criterion. Judicial personnel can only be convicted and sentenced according to law, and cannot enter the country at will according to the likes and dislikes of judicial personnel, which has played a role in ensuring that innocent people are not investigated by law. Finally, the legislator identified the socially harmful behavior as a violation of the criminal law, which made it get an uncertain legal evaluation in the criminal law, provided people with a list of behaviors that should be punished, provided people with an example of behavior, and played a guiding role in people's behavior. (2), the provisions of the criminal law on the subject of crime. Article 17 of the Criminal Law stipulates that "a person who has reached the age of 16 shall bear criminal responsibility for committing a crime", and "a person who has reached the age of 14 but has not reached the age of 16 shall bear criminal responsibility for intentional homicide, intentional injury, serious injury, death, rape, robbery, drug trafficking, arson, explosion and poisoning. "The criminal law not only stipulates the age of criminal responsibility of the criminal subject, but also stipulates the criminal responsibility ability of mental patients and drunken people. Article 18 of the Criminal Law stipulates: "A mental patient who can't identify or control his own behavior causes harmful results and is confirmed by legal procedures, he shall not bear criminal responsibility", "An intermittent mental patient shall bear criminal responsibility when he is mentally normal" and "A drunken person shall bear criminal responsibility if he commits a crime". The Criminal Law not only clearly stipulates the subject of natural persons, but also stipulates that units can also become the subject of crime. Article 30 of the Criminal Law: "Companies, enterprises, institutions, organs and organizations that commit acts that endanger society, if the law stipulates that it is a unit crime, shall bear criminal responsibility. "In this way, the criminal law provides a legal basis for punishing unit crimes, solves the problem of having to give up because there is no law to convict units, and embodies the important position of the principle of a legally prescribed punishment for a specified crime in criminal law. (3), the provisions of the criminal law on the types of punishment. According to the criminal law of our country, punishment is divided into principal punishment and supplementary punishment. The main punishments include public surveillance, criminal detention, fixed-term imprisonment, life imprisonment and death penalty. Supplementary punishments include fines, deprivation of political rights, confiscation of property, etc. China's criminal law not only stipulates the types of punishment, but also limits the conditions for applying a certain one, such as the death penalty. Article 48 of the Criminal Law stipulates: "The death penalty is only applicable to criminals who commit extremely serious crimes. "Article 49 of the Criminal Law stipulates:" People under the age of 18 at the time of committing a crime and women who are pregnant at the time of trial are not subject to the death penalty. "Not only that, the criminal law also clearly stipulates the principle of sentencing. Article 6 1 of the Criminal Law: "When deciding the punishment for a criminal, it shall be imposed according to the facts, nature, circumstances and the degree of harm to society of the crime and in accordance with the relevant provisions of this Law. "In terms of sentencing methods, not only the general sentencing principles are stipulated, but also the specific sentencing principles, such as the sentencing principles of juvenile crimes, excessive defense and avoiding danger, the sentencing principles of crime preparation, attempted and suspended, and the sentencing principles of principals, accomplices, coerced and abettors, recidivists and surrenders, and so on. (4) The general principles of criminal law clearly stipulate intentional crime, negligent crime, penalty and specific penalty system. Second, from the specific provisions, it is not enough to distinguish between crime and non-crime. To distinguish between crime and non-crime, this crime and that crime cannot be separated from the constitution of crime. The main elements of the constitution of a crime are stipulated in the general provisions, while the other three elements-subjective, object and objective-need to be found in the specific provisions. For example, Article 232 of the Criminal Law: "Whoever intentionally kills someone shall be sentenced to death, life imprisonment or fixed-term imprisonment of more than 10 years; If the circumstances are minor, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years. "According to this provision, in order to constitute this crime, there must be a criminal intention subjectively, and the act of killing must be carried out objectively. It can be inferred that this act violates the right to life of others. According to the relevant provisions of Article 17 of the General Principles of Criminal Law, it can be concluded that the subject of the crime is a natural person who has reached the age of 14 and has the ability to identify and control his own behavior. According to the above elements, the crime of intentional homicide can be correctly identified. Not only that, the above-mentioned charges of intentional homicide also stipulate the statutory punishment for this crime. Judging from the legislative examples of various countries, there are three forms of statutory punishment for specific crimes: one is absolute statutory punishment; The second is the absolutely uncertain statutory punishment; The third is a relatively certain statutory penalty. China adopts a relatively certain legislative example of statutory punishment, that is, it stipulates a certain kind and range of punishment in legal provisions and determines its maximum and minimum terms of imprisonment. This is the current international common practice, which embodies the spirit of a legally prescribed punishment for a relative crime. The principle of a legally prescribed punishment for a crime needs to be implemented: firstly, the retroactivity of criminal law should be denied; The second is to prohibit guilty analogy; Third, all kinds of crimes and their penalties must be clear and specific, prohibiting the application of customary law and opposing absolute unlimited punishment; The fourth is to prevent judges from abusing their discretion; Fifth, judicial interpretation cannot go beyond the law. This shows that the essence of the principle of a legally prescribed punishment for a specified crime is the clarification, standardization and legalization of a legally prescribed punishment for a specified crime.
The significance of carrying out the principle of legally prescribed punishment for a specified crime lies in that it stipulates a series of crimes and punishments, and clearly stipulates that they must be dealt with according to law, so that judicial personnel can have a unified standard and basis to follow when they are convicted and sentenced, which is convenient for maintaining the unity of the legal system; At the same time, it can also prevent anyone, especially law enforcement officers, from abusing their powers and entering and leaving the conviction at will, so that the legitimate rights and interests of citizens can be effectively protected and the guilty people can be punished, convicted and sentenced according to law. We must abide by the law, strictly enforce the law, and investigate those who violate the law, and truly implement the case according to law. However, the principle of legality has its limitations. It is to exchange the real social cost for the true and complete justice of the ideal law. This is because criminal law, as a norm, will always lag behind crime, that is to say, a considerable number of crimes can not be brought to justice, that is, some crimes will be condoned. Because of negative analogy, it will lead to: if the law does not stipulate a certain behavior as a crime, even if it seriously harms society, it cannot be convicted and punished. The solution is to improve the socialist legal system and legislative system, and update and constantly improve China's legal system in time. Make it adapt to the needs of new forms and new situations.