Study On Retroactivity Of Criminal Law Amendment To Amend Charges

Under the wave of reform of modern legal system,the renewal of criminal law is also advancing steadily,which is embodied in the promulgation of criminal law amendments.However,the change of the new law and the old law will bring about the problem of how to choose the law,which just involves the judgment of the retroactivity of criminal law.Especially under the background of the pluralistic and complicated legislative status of the current criminal law amendment rules and the frequent issuance of judicial interpretations,the single retroactivity judgment rule is easy to cause the unclear application of new and old laws and the unclear judgment of the legal punishment.In this paper,the factors affecting retroactivity judgment in the amended rules are combined to sort out the amended charges,and the amended charges are divided into different types,and a set of retroactivity judgment rules for the amended charges in the special provisions of criminal law are summarized,which is expected to be beneficial to judicial practice.This paper mainly consists of three parts.The first part is mainly to the criminal law retroactivity of the basic connotation and theoretical points to comb out the theory.First of all,it is clear that the scope of application of retroactivity should not include the acts that have been decided before the new law takes effect.Chinese legislation limits the scope of application of retroactivity to the acts that have not been tried or the judgment has not been determined before the new law takes effect.At the same time,the judicial interpretation in accordance with the principle of statutory punishment for a crime is included as the basis for judging the retroactivity of the new law.Secondly,the article makes a standardized interpretation of the retroactivity principle of criminal law in China,and further clarifies the order logic of applying the old law as the principle and applying the new law as the exception when the new law is relatively light.Finally,clear sentence weight benchmark should be according to certain logical order,namely the first comparison of the behavior in the method of new and old concrete crime sentencing the maximum punishment prescribed inside the class,then comparing the legal minimum sentence,in the principal punishments and supplementary punishments comparison again,and deny the new and old method for cross applicable within the terms of rationality of sentence is lighter.The second part mainly summarizes the amendment rules of the previous criminal law amendments and discusses the predicament of the retroactivity of the new law.First of all,it is clear that the amended charges are individual or partial amendments to the law.On this basis,the paper analyzes the influence of eleven amendments to criminal law on retroactivity of specific charges.Secondly,it analyzes the previous amendments of criminal law,divides the amended charges into three kinds of amendment rules,namely,the amendment rules,and the adjustment rules,and summarizes the applicable characteristics of the retroactivity of criminal law.Finally,combined with the social background of the promulgation of the criminal law amendment,it is considered that the current crime amendment presents the legislative trend of systematization,diversification and light punishment.This trend tends to cause many problems,such as changing and accumulating amendment rules,conflict between original judicial interpretation and legislation,vague definition of new and old amended charges,and influence on judicial justice.Therefore,we need to update and revise the retroactive application of charges.The third part mainly divides amended charges into three types according to different amended rules and puts forward the corresponding retroactivity criteria.First of all,it defines the new charges in the field of conduct that has never been covered by the provisions of the criminal law as "new" charges,such as the crime of providing false documents,the crime of impostor,etc.In the past judicial practice,due to improper analogical interpretation,the old charges applied under this law are invalid,which does not meet the premise of retrospective judgment.Secondly,the amended charge is defined as "new for old" charge when the constitutive elements of the new and old crimes of the same act are substantially changed,the content of the protection law’s interests is changed and the charges are changed.The specific manifestations of the crime of "exchanging the old with the new" include three kinds of cases: the legalization of the act of helping and the implementation of the act of preparing,the clarification of the provisions of the old law,and the specialization of the general provisions.At the same time,the retroactivity of the new and the old crime protection law should be made according to the principle of retroactivity.Finally,the amended charges that have not changed the constitutive requirements but have adjusted the sentencing rules are defined as "new and existing" charges.In this case,to judge the severity of punishment,we should first compare the main punishment and then look at the supplementary punishment,and judge the level of legal punishment according to the specific punishment level corresponding to the behavior positioning.At the same time,in the judgment of the severity of the new and old punishments,we should consider the circumstances of leniency under reduced circumstances.