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Journal of Shanghai University (Social Science Edition) ›› 2010, Vol. 17 ›› Issue (2): 32-41.

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The Functional Clearness in Derived Principles for
Conviction and Penalty According to Law

  

  • Online:2010-03-15 Published:2010-03-15

Abstract:

The Functional Clearness in Derived Principles for
Conviction and Penalty According to Law(Zhejiang Higher People' s Court, Hangzhou, 310012, China)Abstract： Up to today, the principle for conviction and penalty according to law has changed from absolute to relative, and from formal to substantial. This transformation displays the spirit beneficial to the accused person, and thus further increases its noncrime function. Correspondingly, the function of the derived principle for conviction and penalty according to law should also be transformed. First, the custom law should not blindly be excluded and its noncrime function should be integrated into the origin of the criminal law. Secondly, the analogy explanation should also not blindly be forbidden, and the analogy explanation beneficial to the defendant should be permitted. And at the same time, for the dilative explanation and the restrictive explanation, whether beneficial or harmful to the defendant, should be determined. Finally, in criminal law interpretations, the retroactivity should not be given all and singular. The retroactivity in criminal explorations harmful to the defendant should be prohibited.

　

Key words: Key words： conviction and penalty according to law; derived principle; custom law; criminal explanation; retroactivity

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