Research On Limitation Of Prosecution In Criminal Law

The limitation of prosecution in criminal law refers to the effective time limit for criminal prosecution stipulated in the criminal Law.As one of the penalty elimination systems,the limitation of prosecution system fully embodies the basic concept of respecting and protecting human rights and the trend of leniency of penalty,which has been widely adopted by the criminal legislation of modern countries and is also an important subject that cannot be ignored in the theoretical research of modern criminal law.Due to the tradition of heavy prosecution and heavy blow in our legal culture,the prescription of prosecution limitation system has not been paid due attention in China for a long time.Although the limitation of prosecution system was established in China’s legislation when the Criminal Law was enacted in 1979,there are only three provisions about it,and the legislation is rather rough.When the criminal law was enacted in 1997,the limitation of prosecution system in 1979 criminal Law was basically used.The basic institutional framework is simply outlined,which cannot cope with the complicated judicial practice.In the theoretical research of criminal law,the limitation of prosecution system is also at the edge of theoretical research.Compared with other theoretical subjects of criminal law,the total amount of achievements is less,and most of them are basic understanding or annotation of laws,lacking of macroscopic and legal discussion.There are still many theoretical issues that have not been unified,and there are great differences.In this context,the study of the limitation of prosecution in criminal law can not only conducive to fill the gaps in the legal system,eliminate the differences in the application of law,ensure the uniformity of the application of criminal law,but also can enrich the theoretical system of prescription for prosecution system,clarify the differences in academic principle,and promote the development of theoretical research.This paper comprehensively uses literature analysis method,comparative research method,historical analysis method,case analysis method and other research methods,so as to combine empirical analysis with theoretical speculation.And structurally,this paper is divided into five parts to systematically study the limitation of prosecution in criminal law.The first chapter is an overview of the limitation of criminal law prosecution system,which systematically constructs the basic theoretical framework of the limitation of criminal law prosecution system from three levels.First of all,section one analyzes the basic concept of prescription system of criminal law.The limitation of prosecution,also known as limitation of prosecution right,limitation of public prosecution,refers to the effective time limit for criminal prosecution stipulated by law.At the same time,this section also explore history origin and development of the prosecution limitation system evolution.The system originated from the ancient Roman law---Lex Iulia de adulteriis coercendis in 18 years BC,which has a history of about two thousand years.With the spread of Roman law,the prosecution limitation system,has been followed and developed in the criminal legislation of all countries in the world.It can be said that the development of prescription limitation system is a miniature of human society from barbarism to civilization.This process also reflects the strong vitality and practical significance of prescription limitation system.Some scholars hold that limitation of prosecution originated from the Bao-Gu system in China,the article argues against it.The core of the Bao-gu system is to encourage the perpetrator to help the victim actively,which is closer to the criminal reconciliation system.At last,in order to correctly distinguish the connotation and extension of prescription limitation system,this section differentiates the system of prosecution limitation and similar concepts,such as prescription of action,prescription of execution and time effect.The second section analyzes the theoretical basis of limitation of prosecution,including the justification basis and normative purpose of prosecution limitation.About the justification basis of limitation of prosecution system,there are many theories in the academic world,such as "improvement theory","quasi-punishment theory","social forgetting theory","normative emotion relaxation theory","respecting the factual state theory","power loss theory ","disappearance of illegal association theory","evidence annihilation theory","contemporary community standards theory" and many other kinds of theories.However,the above theories only explain the reasonable reasons for the existence of prescription system from a certain angle,and the defects are obvious,so it is difficult to fully explain the legitimacy of prescription system.Based on the comprehensive analysis of each theory,this paper put forward the point of view that the rationality of the system of limitation is because the passage of time,the state’s right of prosecution has lost its legitimacy,the penalty effect has been realized,there is no need to use the penalty power to punish criminals,by eliminating the right of prosecution no longer has legitimacy,the legitimacy of the right of prosecution is maintained in turn.The normative purpose of prescription limitation system refers to the positive legal and social effects that the legislator intends to achieve by setting up the system.The purpose of prescription for prosecution system is to realize the value of human rights protection,social protection,litigation economy and so on.However,these three values do not go hand in hand,but conflict with each other,which requires further clarification of the logical relationship between each other.It should be made clear that the core or primary value pursuit of prosecution limitation system is the protection of human rights,followed by the protection of social legal interests,and finally the economic and benefit of criminal litigation activities.The third section is the legal attribute of limitation of prosecution.Limitation of prosecution system belongs to substantive law or procedural law ? No matter in legislative operation or theoretical research of various countries,there is no unified view.There are three typical theories: substantive law theory,procedural law theory and hybrid theory.This paper holds that the aim of prescription system of prosecution lies in the elimination of criminal responsibility,its substantive significance is far greater than the procedural significance,and complex substantive judgment is also needed in the specific application,and the theories of various countries are all studied under the framework of criminal substantive law,so it should be defined as the system of substantive law.In addition,the state will no longer pursue criminal responsibility for those who exceed the prescription of limitations.It is also debatable whether this legal status from prosecution is a basic right or a matter of public policy.The paper holds that the limitation of prosecution system solves the necessity of punishment of criminal acts,that is,the problem of the need for punishment.It limits the retroactivity of criminal law by setting the limitation of prosecution,so it belongs to the scope of broad criminal policy.The second chapter is the study about limitation of prosecution system from the perspective of comparative law.Through consulting a large number of first-hand legislation and literature,the legislative comparison and development of limitation of prosecution system of criminal law are solidly promoted.Section one is the extraterritorial investigation of limitation of prosecution system.Although the limitation of prosecution system is widely adopted in modern criminal legislation,the specific system arrangement is quite different due to the differences of national and social conditions and traditional legal culture.This paper selects the typical countries or regions of civil law system(including Germany,Italy,France,Japan,China’s Macao,China’s Taiwan)and common law system(including United Kingdom,United States,China’s Hong Kong),outlines the basic legislative features of limitation of action system and summarizes there legislative features.Section two is the legislative evolution of limitation of prosecution system in China.This section selects several important criminal law drafts in the legislative process of China’s criminal law(includes draft criminal laws in 1950,1954,1957 and1963)and the legislative provisions of the criminal Law of 1979 and 1997,combs out the legislative evolution process of limitation for prosecution system in China.Through horizontal comparison and vertical investigation,we can quickly identify the shortcomings of our current legislation,and provide direction and reference for the subsequent modification and improvement of criminal law.The third section is the new trend of limitation of prosecution system.The prosperity of limitation of prosecution system is accompanied by the popularity of the classical view of criminal law.But starting from the middle of the last century,with the change of social situation and the rise of the functional concept of criminal law in response to specific crime of social calls,western countries also made certain correction for limitation of prosecution system,policy characteristics of limitation system is more obviouss.On the basis of guaranteeing the human rights of criminals,the system of limitation of prosecution system strengthens the protection of the legal interests of victims and the whole society.this article also analyzes the phenomenon,This paper analyzes the establishment of limitation of prosecution for international crimes,legislative changes of limitation of prosecution for crimes of sexual assault on juvenile,and the influence of DNA evidence on limitation of prosecution,which further expands the depth and breadth of the research.The third chapter is the calculation of limitation of prosecution in criminal law.The correct calculation of limitation of prosecution is the basis and foothold of realizing the value of limitation of prosecution system.As the criminal legislation in our country is relatively sparse and the accumulation of judicial experience is insufficient,there are many disputes about the legal application dispute on prescription calculation.This paper analyzes the calculation of limitation of prosecution,and explains each element of prosecution limitation in four sections,including the starting standard of prosecution limitation,the determination of time limit for prosecution,the choice of limitation end and the application of stopping system of time limitation of prosecution.This paper makes a comprehensive analysis of the judicial status and theoretical disputes in the calculation of prescription for prosecution in criminal law,clarifies some difficult and controversial issues in the calculation of prescription for prosecution and tries to clear up the source,and also reflects and criticizes the current legislative arrangements in China.Section one is the starting time of the limitation period for prosecution.From the legal point of view,the starting time of limitation for prosecution should be consistent with the time when the penalty right of a specific crime comes into being,that is,the date when the crime is established.However,in judicial application,due to the existence of different forms of crime completion,crime number and accomplice,the application of the starting standard of "date when the crime is established" needs specific analysis.So this paper further clarifies the starting standard of limitation for prosecution for several kinds of special crime forms that are easy to cause controversy in practice,such as intermittent crime,joint crime,implicated crime,continuous crime,etc.Section two is about the calculation of limitation period for prosecution.The setting of limitation period for prosecution should be positively related to the social harmfulness of the criminal act,which is also the specific expression of the principle of adaptation to crime and punishment in the system of limitation for prosecution.And the possibility of self-reform and recidivism should not be considered the setting of limitation period.The criminal law of China has set up four periods of limitation according to the statutory maximum penalty.When a certain crime contains multiple ranges of penalty,the statutory maximum penalty should be calculated according to the possible penalty of the crime in the provisions.It is controversial whether the influence of sentencing circumstances should be considered when judging the limitation period for prosecution.This paper holds that some sentencing circumstances have already played an important role in determining the limitation period for prosecution.The application of the judgment of sentencing circumstances does not usurp the legislative power.From the perspective of the balance between crime and punishment and the protection of human rights,the regulating effect of some sentencing circumstances on legal punishment should be considered,such as excessive defense,excessive risk aversion,crime suspension,accomplice and so on.The third section is about the end of limitation of prosecution.As for the end of limitation of prosecution,the criminal law has not clearly stipulated.There are many different theories,such as the time of filing a criminal case,the time of taking compulsory measures,the time of initiating public prosecution(private prosecution),and the time of trial.Although the time of filing a criminal case is the mainstream,it has also been recognized in some official documents.However,this article advocates the time of result of prosecution as the end of limitation of prosecution,which can both comply with the meaning of the word "prosecution",and also be compatible with paragraph 2 of article 88 of the criminal law.It can also avoid legal loophole,which is beneficial to realize the system value of limitation of prosecution to protect human rights.The fourth section is the stopping system of limitation of prosecution.The stopping system of limitation of prosecution is the functional supplement of limitation for prosecution system,which can make up for the possible negative effects of limitation for prosecution.The complete stopping system of limitation of prosecution includes three different stopping forms——suspension,interruption and termination of prosecution limitation.China’s criminal law only stipulates two prescription about termination systems and one prescription about interruption system.Aiming at the legislative provisions of Our country,this section analyzes the differences in the application of such contents as "filing investigation","evading investigation or trial","charging" and "failing to file a case when it should be filed",and comments on the overall provisions of the suspension system of the prosecution system in ChinaThe fourth chapter is the related problems of limitation for prosecution system in criminal law.This chapter carries out in-depth investigation and discussion on other difficult and complicated problems of limitation for prosecution system in judicial practice.Section one is about the retroactivity of limitation of prosecution.This section discusses the retroactivity in the application of limitation of prosecution from two aspects.First of all,it is the retroactivity of prescription of cross-law prosecution.On the basis of analyzing the disputes in the academic circle and the experience abroad(including the legislation in Germany,the United States and Japan),this paper holds that the conclusion of "from the old to the lighter" principle should not be applied to the retroactive effect of limitation of prosecution.And the limitation provisions of the new law should be applied to cases that have not exceeded the limitation period for prosecution when the criminal law came into effect in 1997.Secondly,it is the application of limitation of prosecution caused by the change of criminal law and judicial interpretation.From the substantive law attribute of prosecution limitation system and the Angle of protecting human rights,if the limitation period is shortened due to the change of law or judicial interpretation in the course of prosecution,a new judgment shall be made on the limitation period of prosecution by applying the changed law or judicial interpretation.Section two is about the limitation of prosecution for unit crime.Because the criminal law of our country has not stipulated the limitation of prosecution for unit crime,there are great disputes about how to judge the limitation period of unit crime and how to apply the stop system of unit crime in judicial practice.Based on a thorough analysis of the essence of unit crime,this paper holds that under the existing legislative framework,when determining the time limit for the prosecution of unit crime,it should be judged by referring to the legal maximum penalty applicable to the relevant responsible persons in the unit.Based on the independence of the responsibility of the unit,the unit and the unit members should judge separately in the application of the suspension system of prescription for prosecution.At the end of this section,this paper also discusses the theoretical basis and practical necessity of setting the limitation period of independent prosecution for unit crime and suggests the dual limitation system of prosecution for natural person crime and unit crime.Section three is the completion of limitation of prosecution.This section demonstrates the effect of the completion of prescription for prosecution and points out that the validity scope of the completion of prescription is only limited to the exemption of criminal responsibility,not other aspects.The deprivation of the benefits gained by a criminal cannot be exempted by the expiration of the limitation of prosecution.At the same time,this section also analyzes other influences on litigation activities after the completion of limitation of prosecution,such as the relationship between the completion of limitation of prosecution and the determination of recidivism,recidivism and repeat offenders,and the relationship between the completion of limitation of prosecution and the civil action attached to criminal prosecution.The fourth section is the extension of limitation of prosecution.First of all,this section analyzes the significance and necessity of setting up the special system of approval and prosecution in China.The article holds that the legislative basis of the system of approval and prosecution is insufficient,which is inconsistent with the basic idea of legality of crime and punishment,and is not conducive to the realization of human rights protection.In addition,to some extent,the suspension of prescription system has been overlaid,and the effect of the system can be realized by setting up the suspension of prescription system reasonably,paving the way for the improvement of the following suggestions.Secondly,this section analyzes the specific problems in the judicial application of the system of approval and prosecution.The article holds that the word "prosecution" refers to the whole process of prosecution,and the target of prosecution is the specific criminal.The "necessity" of prosecution should be considered in combination with the social harmfulness of the crime,the personal danger of the criminal,the performance of repentance,and the social impact of the case.The fifth chapter is the suggestion to perfect the limitation of action system in Our country.The article boldly puts forward the path choice of perfecting the limitation of prosecution system of criminal law in China.In deep understanding of basic theory of limitation system,comprehensive combing limitation system of the rule of law around the world face,comprehensive grasp the status quo on the basis of the limitation in judicial practice in our country,this paper examine the lack of criminal legislation in our country,discusses the route choice,limitation system perfect in our country from two aspects: idea renewal and the concrete system design put forward reasonable suggestions.First of all,we should update the concept of legislation and judicature.In the limitation of prosecution system,we should not only carry out the basic idea of human rights protection in criminal law,but also further carry out the criminal policy of tempering justice with mercy.At the same time,it can realize limited social defense and save the expenditure of national judicial resources.Secondly,in the specific system design,this paper puts forward suggestions from the following three aspects: first,further rationally set up the limitation period of prosecution,add the limitation period of prosecution for minor crimes,and clarify the limitation period of prosecution for unit crimes.Secondly,reconstruct the suspension system of limitation of prosecution,including canceling the termination system of limitation of prosecution,adding the suspension system of limitation of prosecution,limiting the suspension system of limitation of prosecution,strengthening the connection between limitation of prosecution and criminal procedure.Thirdly,the application of the system of limited overdue prosecution is allowed to approve the prosecution only for crimes with the maximum legal penalty of death penalty;When conditions are ripe,the system of extended prosecution should be abolished in due course,and in line with international law,war crimes,crimes against humanity and other crimes can be prosecuted permanently...