On The Retroactive Effect Of Prosecution Limitation Of Criminal Law

The principle of retroactive effect "Application of the old law with the exception of a light punishment",or "Following the old and light".is stipulated in Article 12 of the Criminal Law,but this article does not clearly stipulate the retroactive effect of the legal limitation of prosecution,coupled with the lack of unified opinions between the highest judicial organs,which arouses the controversy between two views,"Following the old and light" and"Following the new".This thesis supports the former view,and holds that prosecution limitation applies the same retroactivity principle as other provisions of criminal law without exception."Following the new" should be rejected because it destroys the integrity,coordination and stability of law.The retroactivity principle of China’s criminal law is closely linked and coordinated with Legal Principle of Criminal Punishment and in favor of the defendant principle.It is the inherent requirement to realize the value of law that the prescription of prosecution limitation also follows this principle.And the spirit of this principle is also reflected in the judicial interpretation issued simultaneously with the implementation of the revised criminal law and subsequent normative documents.Therefore,this principle should be carried out in the specific application of prosecution limitation spanning the old and new laws.In addition to the preface and conclusion,this thesis consists of the following four parts.Chapter 1 raises the question of retroactive effect of the prosecution limitation.The prosecution limitation and the retroactive effect is inseparable.The limitation of prosecution is an inevitable issue involved in the application of the principle of retroactive effect.In the Criminal Law of 1997,the extension of prosecution limitation was amended,which leads to the different limitation of prosecution prescribed by the old and new laws and the different results of handling cases.However,there are contradictions between theory and legislation,justice and legislation,and there is also confusion in judicial practice.Chapter 2 is a criticism of the retroactive effect "The principle of application of new law" of the prosecution limitation from several angles."The principle of application of new law" was based on the "Substantive law following the old,procedure law following the new"rules and provisions of Article 12 of the Criminal Law.However,this view violates the principle of overall application,destroys the coordination of the law,and does not conform to the spirit of legislative reform,thus leading to the heavy law retrospective and damaging the stability and justice of the legal order.Chapter 3 is a proof of the retrospective effect of "Following the old and light" of the prosecution limitation.Starting with the legitimate basis of the prosecution limitation,the departmental law attribute of the retroactivity is obtained,which denies the application premise of "Substantive law following the old while procedure law following the new".Then check the legitimacy of "Following the old and light" from the perspective of a Legally Prescribed Punishment for a Specified Crime Principle,and the prosecution limitation also applies to this basic principle,subject to the ideological basis,basic content and fundamental spirit.Chapter 4 proposes the specific application of principle"Following the old and light".Through coordinating interpretation of the law,judicial interpretation and normative documents,a coordinated rule system was formed with the spirit of "Following the old and light".For the cases where the revision of the Specific Provisions of the Criminal law leads to the change of legal punishment for concrete crimes and the revision of the General Provisions of the Criminal Law leads to the change of prosecution limitation system,the alternation of the old and new laws under different circumstances should be discussed to fully implement the Principle of "Following the old and light".