Nulla poena sine lege in China: rigidity or flexibility?

AuthorLi Li
PositionSymposium: Constitutional Review in the People's Republic of China

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.

  1. 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. Positivists believed that legislation is imperfect. Hence this school downplays the importance of legislation and challenges the classicist view of the extremely narrow judicial function.

    Enrico Ferri, a representative of the positivist school, wrote in his book, Criminal Sociology, that "[j]ust as an imperfect code with good judges succeeds better than a 'monumental' code with foolish judges, so a prison system, however ingenious and symmetrical, is worthless without a staff to correspond." (7) insisting on a physio-psychological approach, which was further empirically tested by political scientists and served as the basis for an attitudinal model for predicting judicial decisions, (8) Ferri simultaneously challenged the strict compliance proposition of the nulla poena principle. He argued that:

    In criminal law the application of the statute to the particular case is not, or should not be, a mere question of legal and abstract logic, as it is in civil law. it involves the adaptation of an abstract rule, in a psychological sense, to a living and breathing man; for the criminal judge cannot separate himself from the environment and social life, so as to become a more or less mechanical lex loquens. (9) Influenced by this trend, Denmark introduced analogy, which empowers a judge to punish iniquitous acts that are not strictly prohibited by a criminal code in accordance with analogous code provisions, in the early twentieth century. Russia discarded the principle of nulla poena entirely in 1926 and Germany adopted many positivist views in the 1927 draft of the German Penal Code. (10)

  2. THE APPLICATION OF NULLA POENA SINE LEGE IN CHINA: RIGIDITY

    In Chinese criminal law, nulla poena is an imported product. its incorporation into the Chinese Penal Code was not a one-step process. The principle of nulla poena first officially appeared in the New Criminal Law of the Qing Dynasty in 1911. (11) Later, the 1979 Criminal Law employed analogy instead of nulla poena due to both a lack of legislative experience and the influence of 1922 and 1926 soviet-Russian criminal laws. (12) in recognition of judicial discretion, current Chinese criminal law employs a modified version of nulla poena, which states that where acts are explicitly defined as criminal acts in law, the offenders shall be convicted and punished in accordance with law; otherwise, they shall not be convicted or punished. The modified nulla poena principle is explained by Chinese legal scholars as "relative nulla poena," which follows the spirit of the original but is a self-perfection stage of the original version. (13) This relative nulla poena is believed to be distinguishable from the proposition of positivism in that it entails the consideration of legal factors in the sentencing process rather than downplaying legal influences, and, on the other hand, it is not based on the strict nulla poena proposed by classicism in that it necessitates judicial discretion to some extent. (14)

    Incorporating nulla poena into the criminal law marks a major breakthrough in China's criminal justice system because it represents the first time this principle expressly appeared in criminal law since the foundation of the new China. it is believed that this addition brings Chinese criminal law into closer conformity with the mainstream rule-of-law paradigm. (15) However, somewhat different from the negative statement in the Latin maxim or other international covenants, Chinese nulla poena has both positive and negative dimensions. The positive dimension confirms that any offender who breaches criminal law shall be convicted and punished in accordance with the law, whereas the negative dimension emphasizes the converse. Compared with its Latin maxim, the extra, positive dimension does not allow a judge to acquit defendants whose conduct constitutes an offense but does not cause sufficient substantive harm to society. The positive dimension is criticized for depriving the judiciary of the discretion to acquit, while such discretion is an inherent element of nulla poena. (16) This reduces the flexibility of legal rules and weakens...

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