New Study On The Source Of Criminal Law

The main theme of this paper is to provide a new awareness of the source of criminal law, in order to identify the positive significance of the source of criminal law theory in China's future criminal law development. The full text is divided into six parts:Part I: Introduction. Firstly, according to the studies of the comprehensive book, specialized publications, journal paper and JD&LLM thesis on the sources of Criminal law, with the results of these studies on the meaning, classification and China's specific sources of Criminal law of the sources of Criminal law, author conclude that: on the one hand, judging from the research results, the source of Criminal law is still being ignored by the mainstream theoretical circle; on the other hand, the contents of the study is not thorough enough. Secondly, the author clearly point out that the significance of this paper is to explore the role of the sources of Criminal law in China's realization of the principle of Nullum crimen sine lege. Finally, the author defines that the theme of this study is a new awareness of the sources of Criminal law.Partâ…¡: The basic problem of the source of criminal law. Firstly, author gives a summary description about the interaction between the source of law theory and the source of criminal law theory. Author believes the study on source of criminal law theory should promptly absorb the research results of source of law theory. Secondly, author explores the concept of the source of criminal law. In author's opinion, the concept of the source of criminal law can be explained from two perspectives. From a legislative perspective inspection, the source of criminal law refers to the source of the norms of the criminal law, where is the source of the criminal law; From the judicial Perspective inspection, the so-called source of criminal law is, in fact, criminal judge's source of law, which is the places where applicable law to the specific criminal cases can be found by criminal judge. Then, author discusses the issue of classification of the source of criminal law. Author believes that the Classification of formal and informal sources of criminal law has the most Pragmatic significance. Finally, author briefly reviews the legislative evolution of the legislation of the source of criminal law. Partâ…¢: The elements of the source of criminal law. First, author gives an outline introduction to the elements of the source of criminal law, especially introduced the concept and characteristics of the elements of the source of criminal law, as well as the relationship between the principle of Nullum crimen sine lege and the source of criminal law. Second, author explores china's problem of elements of source of criminal law from the legislation and the form & essential elements of the elements of source of criminal law. Finally, author explores the relationship between the principle of in favor of defendant and the source of criminal law.Partâ…£: Current source of criminal law in China. At present, enactment is the formal source of the criminal law, China's Criminal Code is the most basic source of criminal law, and there is single piece criminal law. In the future, the source of China's Criminal law development trend is a further step to enactment of.On the judicial interpretations of the source of Criminal law issues, author believes that the judicial interpretation of the Criminal law shares the status of de facto source of criminal law. But this status causes a tension with the principle of Nullum crimen sine lege, so it needs a compromise between the two of them to counteract the tension. On the status of the source of criminal law of customary law issues, author believes that in generally customary law should be treated as the informal source of criminal law, only in the specific conditions under the principle of in favor of defendant, should the customary law be used as the official source of criminal law. Judging from the technology and theory accumulation, Criminal case should not be treated as a source of criminal law, or it is difficult to achieve that goal.Part V: Pragmatic reason and system of source of criminal law. Despite China's Criminal Law is a transplantation of criminal theory from Europe and the United States and the former Soviet Union, but the basic spirit of China's Criminal Law is still China's traditional spirit of Pragmatic reason. Under the impact of this spirit, China's Criminal Law legislation is not strict enough, the Criminal Justice practice is also very irregular, or even criminal law theory study itself is full of Pragmatic rational spirit. This has led to confusion in the system of the source of criminal law. In the new criminal law modified in 1997, China established the principle of Nullum crimen sine lege, the system of the source of criminal law is developing more rational, but the Pragmatic rational spirit of China's criminal law still plays an important role in the system of source of criminal law. Therefore, in future development of the rule of law, how to properly deal with the relationship of Pragmatic reason and the system of source of criminal law is still worthwhile to explore.Finally of This paper, author hopes to use the opportunity to express some of the basic points, including the sober self-awareness, the fundamental task of criminal law and "use West in China".