(A) the concept of criminal law

Criminal law is a law that stipulates what a crime is and how to punish it. From the definition of criminal law, we can know that the adjustment object of criminal law is crime and punishment. The content of this chapter is also closely around the two major issues of crime and punishment.

Criminal law can be divided into broad sense and narrow sense. Criminal law in a broad sense is the general name of all criminal legal norms, which includes

(1) criminal law.

(2) Separate criminal laws and regulations. For example,1Decision on Punishing Foreign Exchange Fraud, Foreign Exchange Evasion and Illegal Trading in Foreign Exchange adopted by the National People's Congress Standing Committee (NPCSC) in February, 1999.

(3) Subsidiary criminal law norms. That is, the criminal liability clause in non-criminal laws and regulations. For example, Article 46 of the Price Law stipulates that if a price worker divulges state secrets or commercial secrets, abuses his power, engages in malpractices for selfish ends, neglects his duty, and asks for bribes, which constitutes a crime, he shall be investigated for criminal responsibility according to law. Price law belongs to administrative law, but because article 46 is a subsidiary criminal law, it belongs to broad criminal law.

The narrow criminal law only refers to the criminal code. That is, the Criminal Law of People's Republic of China (PRC) was revised and passed at the Fifth Session of the Eighth National People's Congress in March 1997, and came into force on October 1997. The criminal law mentioned in the textbook is a narrow criminal law.

(2) The tasks of criminal law in China

China's criminal law belongs to socialist criminal law in class essence and historical type. Its task includes two aspects:

1. This is punishment. That is, punishing crimes.

2. The second is protection. By punishing crimes, we can protect the interests of the country and the people. The content of protection can be summarized as four aspects:

(1) Defending national security, the people's democratic dictatorship and the socialist system is the primary task of China's criminal law. National security, state power and socialist system are the concentrated expression of the fundamental interests of our people, and they are also the key points pointed out by hostile elements at home and abroad. Therefore, China's criminal law regards "the crime of endangering national security" as the first chapter of the specific provisions, and ranks it as the first of 10 crimes, and provides severe penalties for various crimes that endanger national security.

(2) Protecting the economic base of socialism. That is, to protect multiple ownership systems with public ownership as the main body and the socialist market economy. The third chapter of the specific provisions of criminal law is "crime of disrupting the order of socialist market economy" and the fifth chapter is "crime of infringing property", which provides a strong guarantee for protecting China's economic base.

(3) Safeguarding citizens' personal rights, democratic rights and other rights. For example, the fourth chapter of the specific provisions of the criminal law stipulates various crimes that violate citizens' personal rights and democratic rights.

(4) maintaining social order. For example, the second chapter "Crime of endangering public security" and the sixth chapter "Crime of disturbing social order" in the specific provisions of the Criminal Law have effectively safeguarded social order. Provide a stable social environment for reform and opening up and building a well-off society in an all-round way.

Second, the basic principles of criminal law

General principles of criminal law is an inherent, overall and fundamental principle of criminal law itself, which must be strictly observed in the process of formulating and applying criminal law. China's criminal law has established three basic principles:

(a) the principle of a legally prescribed punishment for a crime. -The basic meaning is that "those who have no explicit provisions in the law are not guilty" and "those who have no explicit provisions in the law are not punished".

What is a crime? What crime? What punishment? Must be clearly defined by the criminal law. This principle has indeed greatly restricted the arbitrariness of the judge's conviction and sentencing, and effectively safeguarded the legitimate rights and interests of citizens.

(2) the principle of equality before the law. -Anyone who commits a crime is equal in the application of the law and has no privilege beyond the law. This is the concrete embodiment of the constitutional principle in criminal law and the requirement of judicial justice.

(3) The principle of suiting crime to punishment. -The severity of punishment should be commensurate with the crimes committed by criminals and the criminal responsibilities they bear. Heavy punishment for a felony and light punishment for a misdemeanor should be commensurate with the crime and punished as a crime, rather than light punishment for a felony and light punishment for a misdemeanor. Extremely light and heavy.

Third, the scope of application of criminal law.

That is to say, effectiveness of the criminal law involves the effectiveness of China's criminal law in three aspects: regional effectiveness, personal effectiveness and time effectiveness.

(A) the regional effect of criminal law

In what geographical area does the criminal law have legal effect?

Unless otherwise provided by law, all crimes committed in People's Republic of China (PRC) are subject to the criminal law of our country.

-"The territory of China" refers to all areas in China, including territory, territorial sea and airspace. In addition, we should pay attention to:

(1) Crimes committed in ships or aircraft in People's Republic of China (PRC), as well as in Chinese embassies and consulates abroad, are also regarded as crimes committed in China and belong to the extension of our territory. No matter where our ships and aircraft are in the universe, as long as they commit crimes inside, our criminal law is applicable. Example: A French passenger killed an American passenger while flying from China to South Korea in China. The case involves the laws of many countries, but according to the provisions of China's criminal law, it is considered that the crime occurred in China and should be applied.

(2) If a criminal act or result occurs in our country, it shall be deemed as a crime in our country and the criminal law of our country shall apply. The separation of criminal behavior and criminal result occurs in different countries, which is called "off-site crime" in criminal law theory. Forged RMB abroad and used in China, the crime is committed in other countries and the result of the crime is in China; Another example is that the parcel exploded in another country of our country, the crime was committed in our country and the result of the crime was in another country. Both of these acts are considered as crimes in our country, and the criminal law of our country is applicable.

-"except as otherwise provided by law". mainly

(1) If a foreigner who enjoys diplomatic immunity violates China's criminal law, his criminal responsibility shall be settled through diplomatic channels. For example, according to the Vienna Convention on Diplomatic Relations of 196 1 and the Regulations on Diplomatic Privileges and Immunities formulated by the National People's Congress Standing Committee (NPCSC) of 1986, ambassadors in the embassy of China and diplomatic representatives on state visits in China are not subject to criminal jurisdiction in China.

(2) Hong Kong and Macao Special Administrative Regions. According to the Basic Law of Hong Kong and Macao, criminal justice in Hong Kong and Macao is independent, and the criminal law of China is not implemented in Hong Kong and Macao.

(B) the effectiveness of criminal law on people

-including the influence on China citizens and foreigners.

1. Validity for China citizens

(1) All citizens of China who commit crimes in our country are subject to the jurisdiction of our criminal law. (No exceptions)

(2) China citizens who commit crimes stipulated in China's criminal law abroad shall, in principle, apply China's criminal law. However, according to the provisions of China's criminal law, if the maximum penalty for the crime is fixed-term imprisonment of not more than three years, it may not be investigated. It should be noted that "not pursuing" means not pursuing absolutely, but retaining the possibility of pursuing, which is a tendency. Therefore, it cannot be expressed as "the criminal law of our country is not applicable".

(3) Our country's state functionaries and soldiers who commit crimes stipulated in the criminal law outside our country are all under the jurisdiction of our country's criminal law. It reflects the requirements for national staff and soldiers to commit crimes abroad and has strict jurisdiction.

2. Impact on foreigners

(1) Our criminal law applies to foreigners who commit crimes in our country, except those who enjoy diplomatic privileges and immunities.

(2) If foreigners commit crimes against our country or our citizens outside our country, our criminal law has the right to exercise jurisdiction. However, there are two restrictions on jurisdiction: first, according to the criminal law, the statutory minimum penalty must be fixed-term imprisonment of more than three years, and second, it is punished according to the law of the place where the crime is committed. If a China student was killed in the United States, the case meets the above conditions. Of course, unless criminals are arrested in our country, it is difficult to actually exercise jurisdiction. However, if the criminal law does not make this provision, it means that China has given up its jurisdiction and foreigners can commit crimes against China without scruple. Therefore, this provision is absolutely necessary to protect China's national interests and overseas China citizens. Although it is difficult to exercise jurisdiction in practice, the significance of this provision itself far exceeds judicial practice.

3. Universal jurisdiction of criminal law in China.

China's criminal law is applicable to crimes stipulated in international treaties concluded or acceded to by China, regardless of whether the perpetrator is from China or a foreigner, or whether the crime occurs inside or outside China, as long as China exercises criminal jurisdiction within the scope of treaty obligations. Such as air hijacking, genocide and international terrorism. As long as criminals are found in our country, our country has the right to exercise criminal jurisdiction.

(3) Time effect of criminal law

The current criminal law in China is 1997 10 10/month.

The retroactivity of China's current criminal law adopts the principle of "from the old to the light" that is

(1) The original criminal law does not stipulate that it is a crime, but the new criminal law stipulates that it is a crime. The original criminal law applies and the new criminal law has no retroactivity;

(2) The original criminal law stipulates that it is a crime, but the new criminal law does not, so the new criminal law shall apply, and the new criminal law shall have retrospective effect;

(3) Both the old and new criminal laws stipulate crimes, and if the limitation of prosecution has not expired, the law with lighter punishment shall prevail.