Research On The Determination Of The Starting Time Of The Limitation Of Prosecution

As one of the reasons for the elimination of criminal responsibility,the limitation of prosecution system undertakes the important function of protecting human rights.The starting time of the limitation of prosecution is very important,which determines the actual effective period of the offender being prosecuted.If the limitation of prosecution starts too late,it is not conducive to the protection of human rights,and if it starts too early,it is difficult to realize the task of protecting legal interests in criminal law.For the understanding of "the date of crime" in Article 89 of the criminal law,"behaviorism theory" and "crime establishment theory" have defects,so it is difficult to construct a universally applicable starting standard of prosecution prescription.In judicial practice,there are some problems in the application of limitation of prosecution,such as different understanding of "the date of crime",improper expansion of the scope of crime "with continuous or continuous behavior",and unclear and insufficient reasoning of judgment.The justification of the limitation of prosecution can be formally attributed to,on the one hand,the reduction of people’s need for retribution justice and the perpetrator’s personal danger after a considerable period of time,which makes the social will choose to actively forget the past crimes,on the other hand,the passive forgetting of crimes due to the limitations of punishment,Its essence lies in the balance between the protection of legal interests and the protection of human rights.Under the background of the increasing need for the protection of legal interests indicated by the theories of preventive criminal law and positive criminal law,the interpretation of "the day of crime" should also pay attention to the protection of legal interests.The object of limitation of prosecution should be criminal responsibility,not the right of penalty.There are many drawbacks in the interpretation of the limitation of prosecution system with the right of penalty as the core.The limitation period of prosecution should not start from the emergence of the right of punishment,but from the determination of the criminal responsibility of the crime.In order to meet the needs of the protection of legal interests in reality and alleviate the application dilemma of the starting standard of prosecution prescription in practice,we should make a more substantive and reasonable explanation of the "date of crime" on the basis of the "date of establishment of the crime"-the theory of the stability of the state of infringement of legal interests,that is,the period of prosecution prescription should start from the date when the state of infringement of legal interests in the crime is stable.There are two limitations in the application of the theory of stability of infringement of legal interests.The first is the principle of punishable infringement,and the second is the principle of fair coordination.In a case,the starting point of the limitation of prosecution can be determined in the order of judging the type of crime → when the crime is established → whether the crime continues to infringe upon the legal interests,whether it causes more serious infringement on the legal interests and whether it infringes on other related legal interests.According to the theory of the stability of the infringement of legal interests,the most reasonable starting point of the limitation of prosecution can be found for all types of crimes,especially continuing crimes.