Speaker: Chen Xingliang.

Vice President, Professor and Doctoral Supervisor of Peking University Law School

We should pay attention to the legalization of crime on the basis of legalization of crime. If a legally prescribed punishment for a crime cannot be implemented on the basis of justice, it will also become a dead letter. Of course, the legalization of crime needs a long process, which is closely related to the judicial construction of the whole country.

Here we will talk about three aspects, namely, judicial system, judicial concept and judicial technology.

one

In the process of legalizing crimes, we should first consider the judicial system. If there is no judicial system, the legalization of crime will lack institutionalized guarantee. Our current judicial system is related to the planned economy and is mainly used to punish crimes, while the legalization of crimes conflicts with the judicial system of the planned economy. There is a close relationship between the legalization of crime and judicial independence. Only judicial independence can guarantee the legalization of crimes, because the legalization of crimes requires judicial organs and staff to identify and punish crimes in strict accordance with legal procedures.

To realize judicial independence, we must deal with three problems well.

The first is the relationship between judicial power, executive power and legislative power.

Judicial organs are the main body of judicial activities, and whether they can exercise judicial power independently in this process directly determines the legalization of crimes. However, at present, judicial independence and judicial independence have not been fully realized, and they are often interfered by administrative departments and other organs, especially major and difficult cases, which are often difficult for judicial organs to handle independently. The courts and judicial departments are localized, and the exercise of power by judicial organs is controlled by local authorities, forming local protectionism. Therefore, the judiciary should be liberated from local control.

In addition, it also involves the relationship between judicature and legislation. China implements one government and two houses, and NPC has certain leadership and supervision over judicial organs, but how should it exercise supervision? At that time, the issue of case supervision was put forward, which had a certain impact on avoiding judicial corruption, but it eroded the independence of the judiciary to a great extent, confused the relationship between the judiciary and the legislature, and made NPC a court above the court. The independent exercise of judicial power should be respected. If judicial power cannot be exercised independently, then the trial is not based on the law, but is subject to the party and government departments. Of course, isn't judicial independence not subject to the leadership of the party? Of course not. The statutory requirement of crime is to strictly follow the law as the sentencing standard, and the law is the embodiment of the will of the people of the whole country, and exercising power according to law is the support for the leadership of the party. The two are not contradictory. The key is how to improve its leadership. For example, relevant laws and regulations can be formulated, not through individual cases.

Second, the relationship between the judiciary and the media.

Now people pay more and more attention to some cases, so the role of the media is also growing. The media is known as the "fourth force in modern society", which is itself a kind of public opinion supervision. However, crime is not interfered by any force in law, nor should it be influenced by the media. An important principle of case judgment is "experience", and the media's report on the case itself has limitations and cannot be as pure and objective as the trial of the case. The subjective factors of informants will definitely be added. They are not legal professionals and cannot report from a legal perspective, thus misleading the masses and never exerting pressure on the trial of cases. Therefore, the two should seek a kind of coordination.

The third is how to deal with the internal problems of the judicial organ system.

In order to overcome the trend of judicial administration, the higher and lower courts are not a leadership relationship, and there are difficult cases for instructions, which undermines the principle of legality, deprives the defendant of the right to appeal to a certain extent, and delays the trial time of the case to a great extent. This phenomenon of asking for instructions is related to the system of investigating misjudged cases. In order to avoid retrial and reduce misjudged cases, we will consult the higher court. In fact, courts at all levels exercise judicial power independently. If it is not malicious, it is in line with judicial regulations for different judges to make different judgments.

In addition, there is a tendency of administration within the judiciary. The examination and approval of cases by the president and the director is completely administrative, and the judicial committee decides how to handle it by voting, which is unique to China. Making a decision without personal experience will mislead the undertaker and make a wrong judgment. This kind of "no trial for this trial, no trial for this trial" is not in line with the principle of a legally prescribed punishment for a crime. Therefore, the judicial Committee needs to be reformed, such as setting up a professional trial team and changing the decision-making methods. Judicial independence should ultimately be the independence of judges, and this kind of collective responsibility system will be difficult to investigate when misjudged cases occur.

two

Legalization of crime is also closely related to judicial ideas. Legalization of crime means the revolution of judicial ideas, which involves three kinds of judicial ideas.

The first is the concept of human rights protection.

Protecting human rights can only be achieved by legalizing crimes. Justice must not go beyond the boundaries of the law, and citizens also have their own human rights and freedoms without violating the law, so the law is contractual. There is a clear boundary between the criminal law in a legal society and the criminal law in an authoritarian society. The difference between the two lies not in its formal surface, but in the spiritual level of criminal law. In an authoritarian society, the country is not restricted by criminal law, and its biggest feature is "making people not call themselves people". Criminal law is a means for tyrants to create terror, a force for dissidents and oppression of citizens. In a society ruled by law, criminal law not only restricts citizens, but also restricts judicial organs to some extent. It has also become a sharp weapon for citizens to safeguard their own rights and interests, and it is the "Magna Carta of the defendant". Therefore, the legalization of crime depends on whether the protection of human rights can be established.

So how to choose between fighting crime and safeguarding human rights conflicts? Generally speaking, we will adhere to the principle of "no waste and no verticality", but this is an idealized state after all, and many times we can only choose one. Then, under the principle of a legally prescribed punishment for a specified crime, the correct choice should be to protect human rights, even at the expense of cracking down on crime, that is, "rather vertical than abolished." Why does our law protect the defendant? It seems hard to be logical. Our law protects the defendant, in fact, it protects the defendant's legal rights. The perfection of law lies not in protecting people, but in protecting the rights of defendants. Everyone is a potential defendant, and the law should protect everyone without knowing who the defendant is.

The establishment of criminal law is not to fight crime, but to limit and standardize the behavior of fighting crime and prevent the criminal law from being abused. Because under the principle of legally prescribed punishment for a specified crime, there are no loopholes in the law, as long as there are no provisions, it is innocent.

Secondly, the principle of formal rationality.

In the past, criminal law was based on substantive rationality and formal rationality, and put substantive rationality in the first place to see the social harm it caused. According to the principle of a legally prescribed punishment for a crime, if there is no provision in the criminal law, even if it is very harmful, it cannot constitute a crime, which may sacrifice substantive rationality, which must be faced in the process of legalization of a crime.

For example, there is a case in China. At that time, the law stipulated that climbing over the wall, digging a hole and escaping from prison were all regarded as crimes, but in this case, the defendant was picked up by his companion who was flying a helicopter. Finally, according to the law, the defendant was acquitted. This is entirely based on the literal meaning, regardless of the substantive impact.

The problem now is that formal rationality is not feasible in front of many judicial personnel, and it is also facing the problem of mass recognition.

Third, the principle of modesty in criminal law.

The modesty of criminal law is to obtain the maximum effect with the minimum cost of criminal law. People are superstitious about criminal law, especially the death penalty. When social violations increase and people's sense of security decreases, they will first think of criminal law and hope to be severely punished by it. However, criminal law should try to reduce its involvement in social life and exercise self-restraint. If we always think about how to expand the criminal law, it will lead to extrajudicial punishment.

three

The legalization of crime is also closely related to judicial technology. Judicial activity is a highly professional activity. "The legalization of crime is realized by deduction, with laws and regulations as the major premise and the facts of the case as the minor premise".

The first link is to demonstrate and explain the legal provisions, that is, "finding the law." The law itself needs us to understand. There are two kinds of legal provisions: explicit provisions and implicit provisions. It is expressly stipulated that guilt and innocence can be judged literally.

At present, the most controversial issue is the legal interpretation, that is, whether the legal interpretation is correct, because the legalization of crime is realized through one case. We should say that the interpretation of the law is not to explore the legislative reasons, but to adapt the law to the development of society through interpretation. Law is only limited by language ability, not by whether legislators think about it or not.

Any word appears as a feeling, which is opposite to objective things, but words and things are not necessarily completely opposite, so when something new appears, it is not to invent a new word, but to accommodate it.

In the past, it was inappropriate to regard the legality of crime as a political issue and an attitude issue. A legally prescribed punishment for a crime is a technical problem, a linguistic problem and a logical problem.

Ask questions:

Q: What is the relationship between the legality of a crime and "determination before trial"?

A: Is the subject of judicial power involved in the "pre-trial decision" a court, a judicial committee or a judge? "Pre-trial decision" is divorced from the judicial process and violates the procedural law, the principle of a legally prescribed punishment for a specified crime and the spirit of the legal system.

Q: What is the relationship between a legally prescribed punishment for a crime and computer sentencing?

A: "Computer sentencing is a discussion in the experiment. Establish a sentencing expert database with the help of computers, handle cases in a unified manner according to non-personality factors, and reduce the factors considered. But it is doubtful whether computers can replace the human brain, especially in legal interpretation. The real sentencing should be judged by judicial personnel through personal experience, and judgment needs a reason. There is no reason for computer sentencing.

Q: The Southern Metropolis Daily incident can be said to be a contest between the media and the judiciary, so what impact does this have on the legality of the crime? Does the judgment in this case conform to the principle of legality?

A: This dispute is not directly related to a legally prescribed punishment for a crime, but only a different interpretation of the law. Everyone thinks that their understanding conforms to the principle of legality. If they are not the statutory principles of malicious destruction, it is in line with the legal requirements for judges to make different rulings. The key is to improve judicial technology, so that cases can be judged correctly.

Q: Under the principle of legally prescribed punishment for a specified crime, how to make legal interpretation and extended interpretation?

A: Expansive explanations favorable to the defendant are allowed, while those unfavorable to the defendant are generally not allowed.

Q: If some measures are taken to ensure the independence of the judiciary, such as restricting the reporting of cases, does this restrict the freedom of the press?

A: There are some specific rules that can be reported after the conclusion comes out, but before the conclusion comes out, many materials have been established before the court hearing, so if the media reports at this time, it will interfere with the court's decision. Because we should at least let the people who have the right to make judgments not be influenced by the media, and at the same time, the media should try their best to report professionally, such as hiring legal professionals to explain.

Q: How to study law?

A: We should adopt various methods to study law, such as general methods of linguistics and logical analysis. Because law is the existence of history, we should use some methods of history, because law is a part of social life, so we should combine it with social life.

To learn legal knowledge, we must have a wide range of knowledge. Kung fu is outside the law. Don't just know legal knowledge, but also learn it in various ways. The key is to master the legal thinking method. For example, those who study economic law must know something about economy, and those who study criminal law must know something about society and philosophy.

Note: The publication of this article has been approved by the organizer; Due to time and other reasons, this article was not reviewed by the speaker.