The origin of the criminal law review

The origin of the criminal law review (note 1)

Keywords: comparison, English law, common law, case law, enacted law

A British criminal law, the common law origin

The most important British criminal law of origin is common law, also called common law or case law, is formed by the habits and case law. In ancient Britain, once had a historical period of the country have no applicable unified law, and the local habits and different from each other. Since 1066 the Normandy duke William conquest Anglo-Saxon-Saxon later, will observe all the habit to unity, which gradually formed the common law, the so-called common, is the traffic in ordinary habits. Ordinary habits become law, and as a judge the case according to, making decision, if the same thing happened again after the case of a case, the judgment in cases of before, can have legal effectiveness. Common law, it is from this and form. Due to the common law in Britain have independent become a system, when the Roman law in Europe popular, although the forces of the Roman law than English law, the content of the Roman law is better than English law, but the law still independent of Europe, not only for the Roman law assimilated, and increasingly popular all over the world, and gradually become independent legal system in the world, one of the common law system.

18 th century British famous jurist braxton has once said: "the law of the main cornerstone, is general and old habits, or call common law, in the court's decision from time to time in published......" Visible, the criminal law is based on the origin of the judicial decisions and precedent and the formation of early habit. In the first common law of crime, have those who threaten social basis and often put to death and confiscation of property of a punishment of serious crimes such as murder, rape, theft, etc.

Along with the development of the common law, gradually produce the basis and the reference case had explained the practice of judgment cases, often by expanding the scope of the sin of the existing and create new crimes. Explanation, in fact is the search for the criminal law spirit. Already existing laws, the meaning of the standard, usually is easy to understand and grasp, however, because of criminal law has high generalization, and some of the meaning, have different from ordinary language meaning meaning, it is only by understanding exactly explain to the spirit of the legislation has reached. In addition, the method of constant should be the sin of the change, hard to avoid omissions, explain can make up for less than the legislative intent. And the lack of early British criminal law, especially pay attention to the search for criminal law spirit, also is that more scholars explanation. In addition, the previous sentence, also for the judge conviction provide a lot of valuable experience, enrich the origin of the criminal law. As braxton has in the British law definition "said:" legal knowledge from experience and learning, so the judge shall follow the example (stare decisis).... but in order to meet the new experience, rules must be the exception, in order to conform to reality, the previous rules can also be opposite consideration.... so, unless obviously ridiculous or injustice, and precedents and rules must be followed."#p#分頁標題#e#

It is easy to see that we, despite early British forensic textbooks to the criminal law written paper does not have legal binding force, but some have the advice of is thought to have a force. For example, kirk was the general law of England 3 of a roll (1642),  hale with the criminal litigation "(1678), Hawkins with the criminal litigation" (1716-1721), the  foster "criminal law" (1762), braxton has the legal definition of the volume 4 (1769  years), eastbourne sprang up with "criminal litigation" (1803), these works greatly promote the development of the common law, make the common law, the principle of the criminal law on the principle to gradually forming, in a sense, these works of the criminal law is an important part of the common law origin. Common on some of the crime, now it has been compiled ChengDian to make sure down form of law, such as 1861's "of assault law, 1959's" sex contrary to section of is a typical example of this.

Follow precedent principles of value, is not negative. People used to own or their country view to survey UK, and made all manner of suspicions and the blame. Understand English history people are very understand, why British judge asks first virtue is good, why Britain's judges is first jurist, why the judge's ruling can do is remote, hundreds or thousands of years history test more than have the change. If we ask ourselves, our judicial filled the abuse their powers, engages in malpractices for personal gain, a law-abiding citizen, but lack of later generations of supervision, there is little the judge's discusses the bible of posterity has become, and often some because argue irrationally on the shelf, or contrived to see people, even for possession haft been planted on the glowglobe. Anyone who doesn't implement case law country, have intentionally or unintentionally indulge the judge corruption and crime tendency. Together with legislative legislation also have no a lot of long pursuit, the loss of the ideal of justice. Don't just indulge in wilful persecution, evil popular, and the YinHen grievances only, can't flee ability grouping. Because the law is the symbol of futile. Conversely, if the case law have what value, the most value is the decision as a precedent to maintain the justice, stand up to it. "The language of the common law, specific principles, regulations and authority is full of such as' case fair 'and' reasonable 'and' right 'and' right 'and' sense of justice" and such words; judge was his oath and instruct the to the legislation of the country of delivering justice ', 'to' fair treatment '." (note 2)

Second, the criminal law enacted law origin

The second kind of important British criminal law is enacted law origin, also called statute law, is the legislature will ordinary legal principle with provisions to provided legal. In Britain did not execute before a parliamentary system, enacted law is the king's command. After a parliamentary system, all of the draft law must by parliament house respectively through the again by king approval, just become law. In the eighteenth century ago, Britain's legislative quantity few, the court the applicable law or most of the common law, enacted law but are some of your things started. Britain is enacted law for habit and exist, not the common law, is enacted law of things become meaningless. If the British common law and not only enacted law, it is not only some inconsistent law, there is no below above, and have a lot of questions about life, can't find laws. From 18 th century on, enacted law to some development. Since 19 century, the British in the criminal law has thousands, already more than medieval all legislation.#p#分頁標題#e#

The British parliament promulgated in 1215 after the great charter,  have established all sorts of law.  such as 1351's "rebel sin law, 1494's" night poaching sin law, 1721's the pirate sin law "and so on. 18 th century began after announced some about the criminal justice act, such as 1806's "the witness law", the 1865 "criminal litigation law", and so on. The law of criminal law, the increasingly, of course, is all special decrees, and of no complete code. Now, most of the crime is formulated by the provisions of the law, for example, in 1911, the "perjury law" in 1981, the "forgery sin and currency counterfeiting sin law, that is so. Some have enacted law completely replaced the common laws for some crime provisions, such as 1968's "theft law. Enacted law can create new  charges,  for example, 1971's "hijacked law (now has been 1982 years of the aviation safety" what replace).

Of course, in enacted law does not change the common law cases, common law to remain effective. Common law still have many content which have not been enacted law. Therefore, common law is still an important source of the British criminal law, and formulate laws complementing each other, still decides the basic nature of the criminal law. In turn, because after all, in the common law enacted law is based on the things that happened, "is the common law that is in the common law, or some defects fix" (braxton has), therefore, in both conflict, was first enacted law shall apply.

The criminal law is also a kind of similar in enacted law, and to create different sources of law, namely the entrust legislation. Crime by law and documents can create method, this power received from parliament. So, also called entrust legislation.

In the history of British criminal law, there had been will be enacted law and some of the content on the case FaDianHua efforts. However can say, in the common law, enacted law has a long history of the British caught up, creating a unified the criminal code goal is still far away. Therefore, now to find out if the British criminal law, not a uniform code as the basis, and dependent on common law, enacted law, as well as a commissioned from the legislation law file. This determines the British criminal law system, relative to the civil law countries in criminal law, asing if is broken. But, as a its own characteristics of ancient legal system, the theory, the content is mature, the complete and reasonable, even be practical, scientific, sufficient information other countries for reference of the legal system.

Three, the criminal law about judicial legislation in the debate

The judicial interpretation in the criminal law of development of the role of is huge. The problem is, now still have announced the new law judicial power? If so, how extensive this power?

In the nineteenth century bourgeois revolutionary process, the western countries have a legal principle, reflected in the criminal law that is legal punishment of socialism. In Britain in the criminal law, and also in pursuing legal punishment of socialist, namely "Nullum crimen sine lege" (no crime without law) and "Nullapoena sine lege" (without law making it so no penalty). This means that for crime and punishment , must be in the crime occurred before the law is well documented. If there is no express provision in the law, they don't think that constitutes a crime, the behavior is not punishment. For an offender, in addition to impose legal regulations the portion of punishment beyond, can't be the punishment of the law. This principle is called the legal punishment of socialism.#p#分頁標題#e#

Legal punishment of socialism has been the world each legal system that is universally confirmation. These principles is the earliest Roman law, 19 century of France and Germany embodies the principle of the criminal code. Britain in the great charter, though not included in these principles, but great charter really established can achieve the same result and guarantee the principle of litigation. In 1215 king John signed the great charter 39 section: "any free if not after the suitable method the referee africa.g.africana yielded noble or in accordance with the state laws and regulations, shall not be arrested, jailed or confiscation of property, or rejecting the from the protection of the law or the exile to damage or......." British people the freedom of the person and reputation, started in the form of law protected, this in world history is relatively early, groundbreaking. It laid a due process of law's legal thoughts foundation.

In the history, the basic principle in Britain never formally provisions of law. But, certainly, its essence is included in the many many of judgment. The appeal court judge Stephen king in 1884 lawsuit case of price, after considering not enacted law of according to certain behavior (burned bodies) whether can proclaim as crime, such explained: "no doubt, in some cases, the court declared some never sure of the act constitutes a misdemeanor, but I think we will find that, in each of these cases, the behavior were related to huge public prejudice and moral evil,...... I'm sure it must be in is a misdemeanor, before... I have to make sure that......  in accordance with clear undeniable according to, it is extremely harmful or apparently offend... but I can't even take the first step... criminal law is very important rule is: unless prohibited by law, or understand behavior is not a crime. This rule is undoubtedly there are exceptions, but exceptions are rare, is limited, only the most force and with the most good reason to recognition." In 1986 king v. hoss welfare security court case, the court said that when parliament wish to set criminal responsibility, it always clearly set.

The long history of the British common law tradition, decided to the new charges are the sources of diversified. The new charges about common law created the basis of, to the throne in 1616, court had solemnly announced that "powers belong to this court, not only have the right to correct the mistakes in the lawsuit, and shall have the right to correct the judicial other than the mistake and, as long as they have the misdemeanor disorderly or abuse subjects, the tendency of or cause disputes; therefore, any sin or damage, whatever belongs to the public law field still belongs to the private law, are not implemented, but it should be appropriately in legal procedures to correct or punishment." In 1744 the Jones lawsuit case of Randall, Mansfield Lord once pointed out: "whatever the ethics violations and etiquette (contra bonos mores et decorum), what we all the principles of law  to ban, throne, as the court public achieved total supervision, and the total defenders, responsible for restrictions and punishment." In 1801 king v. higgins, a case, judge Lawrence said: "the public nature of all crime has, that all tend to harm the behavior and attempt to shall be charged is."#p#分頁標題#e#

Judicial legislation on the question of the typical case is the king's lawsuit in 1933) case. In the case, a man that she was a man robbed, and this man to be described in detail. Results the police wasted time to investigate the false charges, risking doubt and arrested a public that meets the accused members of the risk, she was found guilty of cause "impede public welfare" sin. She not legally appeal for this crime. Later her appeal had been rejected. Criminal appeals court ruled that the existence of a form of misdemeanor philanthropic prejudice, and a man's behavior are the sin. For the ruling, people give widely criticized, think it opens up a limited field of criminal responsibility. So in 1954 the king lawsuit newland case, Goddard said Lord insurance program is, don't again so the king's lawsuit case). "Now create new offences, affirmation is the legislation and judicial responsibilities is."

But that should be paid attention to is the king, and the king's lawsuit mann involved in behavior, is now in 1967 by the criminal act of the second paragraph of article 5 down: "if a person intentionally to anyone for false report, to show the crime happened, cause the waste of police work should be imposed prison.............................. or a fine"

Now, this debate continues. 1966 for shaw judgment in cases of a defense attorney is put forward, in essence is considered to be criminal behavior, the court has the right to take measures to maintain the moral welfare state. In 1975 the prosecutor v. wade case, the upper house makes clear that don't exist alone level 1 called "common cause against 'public sin'" criminal conspiracy, although for the criminal law has confirmed behavior may this statement. According to the d period of Kant's DiEr-horn close point, "the judge has no right to create new crime".

However, "judicial creation", especially the judge to modify existing crime scope and form of power, as always. For example, in 1980 the king lawsuit case of sol, guilty of prejudice about public crime charges (according to the 1977 "criminal law" article 1 item 1), think only of social proof the plaintiff is the danger of "potential" and not "realistic", and then established. The judge's main function may be "to the known the equity of the law applicable", but, as Radcliffe Lord points out, not before the applicable law, must be explained, and explain itself that is "creative activities". This is the sound of different legal punishment of socialism. It fully showed that British criminal law the influence of the traditional value. Although the road of the criminal law it twists and turns, it is the spirit is still traditional. Existing law does not apply application, enacted law is difficult to appear promptly, new happening crime and may not choose unique without decisions, judicial legislation gradually became arises at the historic moment remedy to creative interpretation of the law has for unknown method framework pattern. Probably the criminal law of practical, adaptive source for this.#p#分頁標題#e#

So, we have every reason to think that, in the UK, the judge has the dual identity, the value of the dual role. A heavy is the justice, the law of justice has been used in a case of the referee, reflect the behavior of the special value of judgment. Double is lawmakers, through the expansion of existing law and create the new law of righteousness, to reflect the behavior of the general value judgment, and become universally applicable regulations. Most of the Chinese scholars to the British legal punishment for socialist view on China. If history can confirm that a case, this a case is that there was a respected judges and for lawmakers. Because of British history everywhere is full of such creating the justice of law, cutting the justice of case, just write down a unceasingly to evil for good, justice to disseminating everbright chapter. Legal punishment of socialist was Britain's characteristics. And in China, "because the judge quality is not high, the lack of professional dedication, understand deviation, law, the substantive, on the evidence of the judgement of the parties, the lack of necessary patience, read, not catch the main contradiction typically, even can not resist the interference factors of" around, do 'RenQingAn', 'GuanXiAn', 'JinQianAn', the law for." These, sometimes in "' legal 'form performed under the", and "far from one hundred percent land will be the law shall be investigated for" (note 3).

(note 1) this article is compiled by the author in the British criminal law general theory, "a book about the content to rewrite the and into. Some relevant theory, legislation and cases from the original author more for data collection and Chinese translation of, also have reference domestic scholars results, not another indicate the source. The Anglo-American law system about belong to the United States the problem of criminal law, the proposal ChuHuai refer to Mr. Plant with the American criminal law "(second edition),  Beijing university press, March 1996; Mr. ChuHuai plant and the "criminal integration and the relationship of criminal law, Cambridge university press, in January 1997 the first edition. These are after recently updated monographs.

(note 2) ZhengRuChun common law of justice consciousness ", "the comparison research, 1998 ( 12, no. 4).

(note 3) WuShuChen law HanLiang, judges discretion and the referee self-discipline ", "the Chinese and foreign law"  1998 (1), 31 page. Scholars in our country the problem discussed for many,  recently information can be ShenMinRong see the statutory the evolution of our legal system ", "the politics of hunan province cadres management institute journal, no. 3, 1999, and so on.