On the application principle of limitation of prosecution
Author: Li Yong (Nanjing, Jiangsu)
National expert in procuratorial business, doctoral candidate of Southeast University
Source: China prosecutor 2020, issue 3, network source: China prosecutor wechat Company No
According to the editor's note of China's procurator, "punishment is a kind of evil that contains reproach in crime". Based on the purpose rational view of punishment, in modern society, the country can not start the penalty power without limitation. Therefore, countries generally have a system of limitation of prosecution. China's criminal law in 1979 and criminal law in 1997 also made corresponding provisions. However, due to the generality of the legal provisions and the lack of unified and clear opinions of the supreme judicial organ, the theory and practice differ greatly on the application of the limitation of action, especially on the connection of the old and new laws. A few days ago, Nanjing, Jiangsu Province, just broke down the "original case of rape and murder of Nanyi University", which rekindled the discussion of this topic and also caused hot public debate. It can be predicted that with the high-tech being widely used in criminal investigation, a large number of backlog cases and old cases that have been in deadlock for a long time in the past will be gradually solved. In view of this, the special topic of this journal is to invite experts and practitioners from the criminal law circle to interpret the prosecution clause in multiple dimensions and layers for readers to think.
[basic case] on February 23, 2020, the official microblog of Nanjing Public Security Bureau released a message: on March 24, 1992, a case of brutal killing of Lin, a female student in school, happened in the former Nanjing Medical College of Gulou District, Nanjing, causing great social impact. After the crime, the public security organ quickly mobilized competent police forces to form a special task force to carry out the investigation work. The killer was not clear because of the lack of conditions to solve the case. Over the past 28 years, the task force has kept in mind its responsibilities and missions, adhered to the principle of keeping an eye on the case, took various measures and continued to work hard. On February 23, 2020, the special investigation team obtained major clues to solve the case, and arrested the suspect Ma XX in the early morning of that day, and solved the case in one fell swoop. At present, the case is under further investigation.
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Summary: the effect of prosecution follows the prohibition of retroactivity required by the criminal law. The essence of "from the old to the lighter" is beneficial to the defendant, and it is the right protection rule that must be abided by when calculating the limitation of prosecution in the change of new and old laws. Whether the procedural issue is applicable to the prohibition of retroactivity depends on whether its modification impairs the interests of the defendant. The justification of the limitation of prosecution lies in the disappearance of the necessity of retribution and prevention after a certain period of time, which leads to the elimination of the state penalty power. If the time limit for prosecution is exceeded, no punishment will be imposed in principle. However, due to the necessity of retribution and prevention, special cases need "exceptional prosecution", which should be strictly restricted by the approval procedure of the Supreme People's Procuratorate. It is not allowed to bypass or overhead the approval procedure at will, let alone delegate the approval authority in disguise.
Key words: prosecution prescription from the old and lighter exception prosecution approval
full text
In 1992, there was a case of murdering Lin Mou, a female student in Nanjing Medical University. At that time, the social influence was huge. On February 23, 2020, the public security organ arrested the suspect Ma XX (hereinafter referred to as the "Nanyi case"). Has the case passed the statute of limitations for 20 years? Is the criminal law of 1979 (hereinafter referred to as the old criminal law) or the current criminal law of 1997 (hereinafter referred to as the new criminal law)? Does it need the approval of the Supreme People's Procuratorate? This series of problems caused wide discussion in the legal circle. With the development of modern science and technology, the application of genetic technology (y-library establishment), big data, artificial intelligence and other new technologies in criminal investigation, a large number of old cases in the 1990s will be solved, and such problems will be more prominent and need to be solved.
1、 Application of new criminal law or old criminal law
（1） Connotation and scope of application of prohibition retroactivity
The essence of the dispute is the retroactivity. The prohibition of retroactivity, also known as the prohibition of post event law, is the basic meaning of the principle of legality, that is, the law formulated after the event is not allowed to be applied to punish the behavior of the actor at that time, in principle, the law at that time should be applied. "This is because if retroactive punishment is not prohibited, citizens will lose the possibility of predicting their own actions", [1] is equal to forcing citizens to abide by the "law" that does not exist at that time. The circumstances of prohibition retroactivity mainly include: (1) punishment for acts that are not prohibited; (2) punishment for acts that are prohibited by law but not prohibited by punishment; (3) reduction or reduction of conditions for the establishment of a crime after the event and increase of possibility for the establishment of a crime; (4) improvement of legal punishment or aggravation of punishment after the event; (5) increase or aggravation of security punishment after the event Or non penalty punishment; (6) after the event, the crime of private prosecution will be changed into the crime of public prosecution; (7) after the event, the limitation of prosecution will be extended; (8) the rules of criminal evidence will be changed and the evidence requirements will be reduced. [2] However, when the new law is more favorable to the defendant, the new law shall be applied, which is the requirement of the state's penalty power to restrain and protect the defendant's rights, and when necessary, it shall give way to the protection of individual rights. (3) the applicable rules against retroactivity can be summarized as "from the old to the lighter". The principle of "from the old and from the light" is the principle of rights protection that must be abided by in the change of the new and old laws. We should adhere to the principle that is conducive to the criminal to calculate the limitation of prosecution. ［4］
Article 77 of the old criminal law stipulates that "those who evade investigation or trial after the people's court, the people's Procuratorate or the public security organ takes compulsory measures shall not be subject to the limitation of the time limit for prosecution", while Article 88 of the new criminal law stipulates that "those who evade investigation or trial after the people's Procuratorate, the public security organ or the state security organ files a case for investigation or accepts a case by the people's court shall not be subject to prosecution Limitation of term. " The difference between the two lies in the extension of prosecution period, the old criminal law requires compulsory measures, and the new criminal law requires filing. Compared with the old criminal law, the old criminal law is more beneficial to the defendant. According to the principle of "from the old to the light", the old criminal law should be applied. At that time, Nanyi case did not target the suspect, so it was impossible to take compulsory measures, which exceeded the 20-year prosecution period.
The scope of application of the prohibition of retroactivity also involves the issues of substance and procedure. It is argued that the prohibition of retroactivity is the principle of substantive criminal law. The rule of "from the old to the lighter" only applies to substantive issues, while procedural issues can only be renewed. Although the prescription is stipulated in the criminal law, it belongs to procedural issues, so Article 88 of the new criminal law is directly applicable. In my opinion, this view is not appropriate.
First of all, it is questionable to define the limitation of prosecution as a procedural issue. The prescription system is a system of eliminating punishment in essence, which no longer gives punishment to the perpetrator for the crime beyond a certain period of time. Just as other substantive laws need to be realized by procedure, procedure is only the way to realize the limitation system. "Limitation of prosecution is a legal system between substantive criminal law and procedural law: its basis mainly exists in substantive law, but its effect is limited in procedural part". (5) prescription is a cross issue between entity and procedure, but the subject is entity. Even if it is admitted that it has procedural attribute, since it is stipulated in the criminal law, there is no reason why it does not comply with the provisions of the general provisions of the criminal law on the legality of crime and punishment.
Secondly, the essential basis of "from the old to the light" is "the possibility of behavior prediction + the principle of benefiting the defendant". As far as procedural law is concerned, most of the changes of the new and old laws do not involve the impairment of the interests of the defendant, but they cannot be absolutized. Some of the changes of procedural system involve the impairment of the interests of the defendant, which should also be dealt with according to the principle that is beneficial to the defendant. Professor Zhang Mingkai believes that it is against the principle of prohibition of retroactivity to extend the limitation of prosecution, change the rules of evidence and reduce the requirements of evidence afterwards. [6] the fundamental reason lies in the impairment of the interests of the defendant.
The author's point of view is that whether the principle of prohibition of retroactivity is applicable to procedural problems depends on whether the modification of this procedural problem brings disadvantages to the defendant and impairs the interests of the defendant. There are also similar provisions in China, for example, Article 3 of the summary of the Symposium on the application of laws and regulations in the trial of administrative cases issued by the Supreme People's court stipulates that "when the people's court reviews the legality of specific administrative acts, the old law applies to the substantive issues and the new law applies to the procedural issues", except that "the application of the new law is more beneficial to the protection of the legitimate rights and interests of the administrative counterpart". Japanese scholars, such as ryuno Hirano, also believe that when the limitation of prosecution brings adverse correction to the actor, it is forbidden to go back to the past, and there are relevant cases. ［7］
（2） On the understanding of the interpretation of several issues concerning the application of time effect provisions of criminal law
Article 1 of the interpretation of the Supreme People's Court on Several Issues concerning the application of the time effect provisions of the criminal law (hereinafter referred to as the interpretation) stipulates that "for criminal acts committed by the perpetrator before September 30, 1997, the perpetrator evades investigation or trial after the people's Procuratorate, public security organ, and national security organ put on file for investigation or after the people's court accepts the case, exceeding the prosecution If the time limit for prosecution or if the victim files a complaint within the time limit for prosecution, the people's court, the people's Procuratorate or the public security organ shall file the case but shall not file the case. If the time limit for prosecution is exceeded, whether the criminal responsibility of the perpetrator shall be investigated shall be governed by the provisions of Article 77 of the criminal law before the amendment. " Therefore, Article 77 of the old criminal law should also be applied to the case of Nanyi. However, it is believed that "interpretation" only refers to the situation that the limitation of prosecution has been exceeded before the new criminal law comes into force, that is, the criminal acts implemented before the implementation of the new criminal law, and the period of prosecution has been exceeded before the implementation of the new criminal law, then the provisions of Article 77 of the old criminal law are applicable. If the time limit for prosecution is not exceeded when the new criminal law is implemented, the provisions of the new criminal law shall apply directly. In my opinion, this view is not appropriate.
First of all, this view violates both the principle of applicable conduct and the principle of benefiting the defendant. This "act time" does not depend on the entry into force of the new criminal law, but on the time elapsed by the act itself and the duration of the act caused by the continuous or continuing offence.
Secondly, this view deviates from the original intention of the prescription system. In theory, the justification of the prescription system includes the theory of quasi punishment, the theory of improving speculation, the theory of annihilation of evidence, and the theory of regulating emotional relaxation. In fact, the prescription system is essentially the elimination of the state's penalty power. "The substantial basis of limitation exists in the elimination of the need for punishment". [9] to find the justification of the limitation of prosecution system, we must return to the foundation of the justification of punishment. On the basis of the legitimacy of punishment, the mainstream theory is syncretism, the compromise between retribution and prevention, retribution is to achieve justice, but it can not be retribution for retribution, but also to achieve the purpose of crime prevention. After a period of time, on the one hand, the justice appeal of retribution is weakened, and the necessity of retribution is reduced or even disappeared, for example, the two sides have reconciled, and the peace of law has been restored; on the other hand, after a period of time, the perpetrator has not committed any more crimes, and the social impact has disappeared, which shows that the necessity of special prevention and general prevention is reduced or even disappeared, so the punishment can be waived Penalty. The decisive factor for the extinction of the power of punishment is whether it exceeds the statutory time limit, whether the sign of the reduction and disappearance of the necessity of retribution and prevention also exceeds the statutory time limit, and whether the time limit for prosecution with a case expires before October 1, 1997 or October 1, 1997