The retroactivity of the limitation of prosecution should apply the principle of ＂starting from the new and following the old＂

Ren Haixin

● When the prosecution expires, the criminal prosecution procedure will not be started and advanced. The "crime" that is blocked refers to "not being a crime" without the examination of the principle of due process, not "not being a crime" under the regulation of the principle of legally prescribed punishment for a crime.

In Article 1 of the Interpretation, "beyond the limitation of prosecution" refers to "Case 1", which should be understood as "beyond the limitation of prosecution before the promulgation of the new law". At this time, the principle of "following the old" should be applied to the retrospective effect of the limitation of prosecution.

With the development of criminal investigation technology, a large number of crimes committed during the implementation of the Criminal Law in 1979 (hereinafter referred to as the "old law" and the Criminal Law in 1997 (hereinafter referred to as the "new law") have been solved or will continue to be solved. These cases, even murder cases, have already exceeded the maximum prosecution period of 20 years. For these criminal cases that span the old and new laws, the retroactivity of the limitation of prosecution presents two different viewpoints and paths of applying the principle of "from the old to the lighter" and the principle of "from the new", which seriously affects the unity of the application of criminal law.

As for the prescription of prosecution, the new law has revised the condition of "no limitation of prosecution period", from three elements (Article 77 of the old law-filing investigation+taking compulsory measures+evading investigation) to two elements (Article 88 of the new law-filing investigation+evading investigation); At the same time, the new law increases the situation of the victim’s complaint. The provision of "no limitation of prosecution period" in the old law is more beneficial to criminals.

The author believes that the principle of "from the new to the old" should be applied to solve the differences in the application of the retrospective effect of the limitation of prosecution.

First, the limitation of prosecution is not an important element of the establishment of "crime" in substantive law. The expiration of prosecution does not mean that the act loses its illegality. The system of limitation of prosecution is a procedural system legally initiated by the state’s penalty power, and the principle of "new procedure" should be applied.

In substantive law, the establishment of "crime" is the premise of prosecution, and his "crime" needs to be restricted by "there is no explicit stipulation that it is not a crime". In procedural law, prosecution is the premise of identifying "crime", which needs to be regulated by "no crime without legal procedures" When the prosecution expires, the criminal prosecution procedure will no longer be started and advanced. The "crime" that is blocked refers to "not being a crime" without the examination of the principle of due process, not "not being a crime" under the regulation of the principle of legally prescribed punishment for a crime.

The validity of legal norms prohibiting the implementation of an act has nothing to do with the time limit for prosecution. Whether the time limit for prosecution expires or not will not affect the specific content of criminal orders and prohibitions, but only affect the time range for judicial organs to investigate the criminal responsibility of the perpetrator. Therefore, the limitation of prosecution is a procedural system, and the principle of "new procedure" should be applied.

Two, the retrospective effect of the limitation of prosecution should not be bound by the principle of a legally prescribed punishment for a specified crime, nor should the principle of "from the old to the lighter" be applied.

One of the aims of the principle of a legally prescribed punishment for a specified crime is to protect national rights and freedoms by restricting the state’s power of punishment, to prohibit the handling of non-constitutive acts and crimes, to prohibit the violation of the criminal law to increase the consequences of punishment, and to prohibit the power of punishment from violating the express provisions of the criminal law in advance and acting recklessly afterwards.

The principle of a legally prescribed punishment for a specified crime guarantees human rights because it has the function of predictability and guidance. According to this principle, citizens can know where the boundaries of their actions are. However, the system of limitation of prosecution can not play a role in regulating and guiding citizens’ behavior. Because, all acts included in the constitutive elements of a crime, regardless of the length of the prosecution period, citizens should not violate it. The revision of the limitation of prosecution in the new law does not involve the adjustment of the constitutive elements of a crime, and will not change people’s judgment on the illegality of an act; The public will not lose the correct code of conduct, and will not lose the possibility of predicting whether their actions are legal or not.

Therefore, under the principle of legally prescribed punishment for a crime in criminal law, it is forbidden to go back to the past, that is, the principle of "from the old to the lighter" restricts the power of the state to stipulate crimes and penalties afterwards in substantive law, and does not apply to the initiation and promotion of criminal prosecution procedures. Although the stipulation of "no limitation of prosecution period" revised by the new law is not conducive to the actor, it does not contradict the principle of legally prescribed punishment for a specified crime. The retrospective effect of the limitation of prosecution should not be bound by the principle of a legally prescribed punishment for a specified crime, nor should the principle of "from the old to the lighter" be applied.

Third, Article 12 of the new law actually establishes the principle of "starting from the new" for the retroactivity of the limitation of prosecution, and the judicial interpretation of this article actually establishes the principle of "starting from the old" for the exception of the retroactivity of the limitation of prosecution.

Article 12 of the new law clearly stipulates that "… if the law at that time considers it a crime, if it should be prosecuted according to the provisions of Section 8 of Chapter IV of the General Provisions of this Law, criminal responsibility shall be investigated according to the law at that time", and its inherent logical relationship is that "criminal responsibility shall be investigated" in the cross-law situation: one is that "the law at that time considers it a crime"; Second, "prosecution shall be pursued in accordance with the provisions of section 8 of Chapter IV of the General Provisions of this Law". Obviously, the "law at that time" only solved whether the behavior met the constitutive requirements of the crime, and the principle of "from the old to the lighter" was applied to conviction and sentencing, which did not solve the problem of the limitation of prosecution, and the limitation of prosecution was determined according to "Section 8 of Chapter IV of the General Provisions of this Law". At the same time, in article 12, two mutually exclusive concepts "this law" and "the law at that time" appeared five times each, indicating that legislators deliberately made a distinction; The expression "in accordance with Article ×× of this Law" is also clearly used in other provisions of the whole criminal law. Therefore, "this law" should refer to the new law, and "the law at that time" should refer to the old law, whether according to the literal meaning of the articles themselves, the logic among the articles or the coordination among the whole criminal law system. Therefore, article 12 actually establishes the principle of "starting from the new" for the retrospective application of the limitation of prosecution that spans the old and new laws.

Some commentators believe that one of the important reasons why the limitation of prosecution system has no retroactivity is to simplify Article 1 of the Supreme People’s Court’s Interpretation on Several Issues Concerning the Application of the Provisions on the Time Effect of Criminal Law on September 25, 1997 (hereinafter referred to as "Interpretation") as follows: "If the criminal act committed by the perpetrator before September 30, 1997 exceeds the prosecution period, whether the perpetrator shall be investigated for criminal responsibility shall be subject to the provisions of Article 77 of the Criminal Law before the revision". The author thinks that this is not only a great misunderstanding of "interpretation", but also a violation of the principle of "starting from the beginning" in the application of the limitation of prosecution established in Article 12 of the new law.

In practice, there are two situations in which the old and new criminal laws are intertwined: first, the criminal act occurred before the new law came into effect, and the prosecution period expired before the new law came into effect, and it was only discovered after the new law came into effect; Second, the act occurred before the new law came into effect, but the prosecution period lasted from the old law to the new law and was discovered after it came into effect. In "Case 1", the time limit for prosecution has expired and the state’s right of prosecution has been eliminated. For criminals, it is a vested interest that they will not be prosecuted by the state again. Article 12 of the new law is actually to clarify the application of "Case 2", because the criminal has not obtained a definite right or legal status for such an event in "Case 2" that started in the past and continues to the present. Therefore, "beyond the limitation of prosecution" in Article 1 of the Interpretation refers to "Case 1", which should be understood as "beyond the limitation of prosecution before the promulgation of the new law". At this time, the principle of "following the old" should be applied to the retrospective effect of the limitation of prosecution.

To sum up, in principle, the retrospective effect of the limitation of prosecution should implement the principle of "starting from the new"-the act occurred during the implementation of the old law, but the prosecution period lasted until after the implementation of the new law-Article 88 of the new law should be applied; The exception is the principle of "following the old"-both the act and the prosecution period expire during the old law-and Article 77 of the old law applies. In a word, the applicable principle of limitation of prosecution is "from the new to the old".

Review and handle such cases, according to the following path:

The first step: according to the principle of "from the old to the lighter", determine the applicable law and statutory maximum penalty for the perpetrator’s conviction and sentencing. Of course, if the new law does not consider it a crime, there is no problem of judging the limitation of prosecution.

Step 2: Determine the statutory time limit for prosecution according to the statutory maximum penalty. Since there is no change in the statutory time limit for prosecution in the old and new criminal laws, continue to judge whether the statutory time limit for prosecution has exceeded from the date of the establishment of the crime to the implementation of the new law, that is, as of September 30, 1997.

Step 3: If the prosecution period has expired by September 30, 1997, judge whether the actor is "not limited by the prosecution period" according to Article 77 of the old law; If the period of prosecution lasts from September 30, 1997 to September 30, 1997, that is, the limitation of prosecution spans the implementation period of the new law, it is judged whether it is "not limited by the period of prosecution" according to Article 88 of the new law.

(The authors are the Second Branch of Chongqing Municipal People’s Procuratorate and the People’s Procuratorate of Kaizhou District, Chongqing)