Nulla Poena Sine Lege in China: Rigidity or Flexibility?

By Li, Li | Suffolk University Law Review, Summer 2010 | Go to article overview

Nulla Poena Sine Lege in China: Rigidity or Flexibility?


Li, Li, Suffolk University Law Review


Nulla poena sine lege is a fundamental principle of criminal law. Its application is closely related to a basic understanding of criminal justice and separation of powers. The 1997 Chinese Criminal Law adopts a modified version of this principle. this modified version includes a negative and a positive dimension, and appears to be more rigid on the surface than the classic conception of the doctrine. However, in view of China's penal statutes, the rigidity of the Chinese nulla poena doctrine has been offset by broad sentence ranges, vague criteria for offense classes, unconstrained sentence mitigation and multi-functional sentencing circumstances.

I. CLASSICISM AND POSITIVISM

Nulla poena sine lege is classically stated by Feuerbach in three dimensions: nulla poena sine lege, nulla poena sine crimine, and nullum crimen sine poena legali (2) It means that there is "no crime without law making it so and no punishment except in accordance with a statutory rule." Two schools of thought are relevant to this principle: classicism and positivism. The classicist school advocates strict compliance with the principle of nulla poena and minimizes the judicial function in the administration of criminal justice. The positivists disagree with classicism's rigid adherence and challenge the view of an extremely narrow judicial function. Both of these schools of thought can be found in the history of nulla poena's development.

Traced back to Roman law, several aspects of nulla poena existed that were colored by strict adherence. (3) The strict adherence proposition was supported by the classicists and went on to have profound influence on the development of criminal law in continental Europe. Cesare Beccaria, a representative of the classical school of criminal law, posited that a judge should only apply laws mechanically and has no discretion in creating, interpreting or amending laws.

In An Essay on Crimes and Punishments, Beccaria outlined his view on the role of judges:

   Judges, in criminal cases, have no right to interpret the penal
   laws, because they are not legislators.... When the code of laws is
   once fixed, it should be observed in the literal sense, and nothing
   more is left to the judge than to determine, whether an action be,
   or be not, conformable to the written law. (4)

Corresponding to his proposition on the extremely narrow judicial function, Beccaria placed a premium on existing law and argued for a rigid adherence to nulla poena:

   [T]he authority of making penal laws can only reside with the
   legislator, who represents the whole society united by the social
   compact. No magistrate then ... can, with justice, inflict on any
   other member of the same society, punishment that is not ordained
   by the laws .... [i]t follows, that no magistrate, even under a
   pretence of zeal, or the public good, should increase the
   punishment already determined by the laws ....

   In every criminal cause the judge should reason syllogistically.
   The major should be the general law; the minor the conformity of
   the action, or its opposition to the laws; the conclusion, liberty,
   or punishment. (5)

The strict adherence proposition tended to safeguard individual rights and limit the government's power. it was incorporated into French law after that nation's revolution. For example, the 1791 draft of the French Penal Code provided for absolutely determinate statutory punishments and left no discretion to judges. (6)

While the protection of individual rights persisted into the eighteenth century, criminal positivists in the nineteenth century began to consider the balance between individual freedom and social security. Compared with classicism, positivism appeared in a more enlightened period. its theorists faced relatively liberal governments and easily lost sight of the importance of limits on government. …

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