新刑事法律溯及力范围比较研究

Comparative Study on Retroactive Extension of New Criminal Law

从世界范围看,有利行为人的新刑事法律溯及范围在立法上有三种模式:溯及以前的所有行为;排除犯罪性的法律溯及以前的所有行为,其他法律只溯及未经判决或判决未确定的行为;溯及以前未经判决或判决未确定的行为。我国刑法的规定属于第三种模式。我国刑法的规定在犯罪与刑罚方面都会产生不公正的结果,特别涉及到死刑的时候;而且我国的规定与即将加入的国际人权公约有冲突,与采用相同模式的其他国家也存在很大差距。建议对我国刑法第12条第2款进行修订。

From the world＇s perspective, there are three legislative models of the retroactive extension in the new criminal law, which benefit for the actors whose all illegal acts in the past; excluding all criminal acts that the law can＇t retroaet, and having retroactive effect on the acts that have been not sentenced or have been not decided; having retroactive effect on the acts that were not sentenced or the sentences were not decided in the past. The provision concerned of the new criminal law in China is the part of the third one. So, the stipulation concerned of Chinese new criminal law can result in injustice in terms of crime and penalty, especially about death penalty. Moreover, the stipulation concerned of Chinese new criminal law can conflict with the International Convention on Human Rights, which has a long way to in keeping with other countries adopting the same model. The best way to amend the Article 12 of the Clause 2 in the New Chinese Criminal Law.