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Case Expression of Concrete Rule of Law (Part II)
Liu Shude
《China Law》2013年2期
Case Expression of Concrete Rule of Law (Part II)
Liu Shude
Official of Judicial Reform Office, Supreme People’s Court

Case Expression of Concrete Rule of Law (Part II)
  II. Case Expression of Multi-Dimensional Rule of Law

  A. Case expression of the idea of rule of law

  The idea of rule of law can be of different levels. At the top is the idea of socialist rule of law, in the middle are the legislative idea and judicial idea, and the idea of criminal justice and idea of civil justice are at the lower level. As far as the criminal rule of law is concerned, whether the legislative or the judicial, the most important thing is to adhere to the principle of legally prescribed punishment for a specified crime, the principle of equality in application of criminal law and the principle of suiting punishment to crime. Here the analysis will be conducted taking the principle of suiting punishment to crime as an example. According to the views of Rawls, “The rule of law implies the precept that similar cases should be treated similarly.” The principle of suiting punishment to crime provided by the 1997 Criminal Law applies concurrently to the criminal legislations, criminal justice and stage of execution of criminal punishment, that is, it is required that same punishment should be imposed on same crimes, and different punishment should be imposed on different crimes. In the handling of the criminal cases, this principle guides both the measurement of punishment and the interpretation of the essential elements of conviction. As far as the latter is concerned, it refers specifically to adopting the method of systematic interpretation, taking into account the restrictive function of the allocation of the statutory punishment on the essential elements, and drawing the conclusion in line with the principle of suiting punishment to crime. For instance, Article 333, Sections 1 and 2 provide that, “Whoever illegally arranges for another person to sell blood shall be sentenced to fixed-term imprisonment of not more than five years and shall also be fined; whoever compels another person to sell blood by violence or threat shall be sentenced to fixed- term imprisonment of not less than five years but not more than 10 years and shall also be fined”; “Whoever commits an act mentioned in the preceding paragraph, thus causing injury to another person, shall be convicted and punished in accordance with the provisions of Article 234 of this Law.” Here “injury” should be interpreted as not including minor injury, otherwise the conclusion shall be reached not in line with the principle of suiting the punishment to crime. Suppose “minor injury” is included, the following conclusion shall be formed: where the actor arranges for another person to sell blood but no minor injury is caused to another person, the provision of Section 1 shall apply, and he commits the crime of illegally arranging for selling blood, and shall be sentenced to fixed-term imprisonment of not more than five years and shall also be fined; where the actor illegally arranges another person to sell blood and thus causing injury to another person, he commits the crime of intentionally inflicting injury, and the provision of Section 2 shall apply. Thus, he shall be only punished within the scope of statutory punishment of being sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance. Of course, it should be pointed out that, the claim of this kind of “determination of a crime by the statutory penalty of the crime” shall not be absolutized. For instance, as to the extent concerning acting indecently against or insulting a woman by violence, coercion or any other forcible means provided by Article 237, Section 1 of the Criminal Law, some scholars hold the view that the extent of violence or coercion should not reach the “extent sufficient to suppress the resistance of the victim” required for the crime of robbery, but the extent should be lower then the extent required for the crime of rape. Some scholars maintain that, “violence, coercion or any other forcible means” required for this crime should be interpreted in the same way as the interpretation of the crime of rape. In my opinion, the violence and coercion required for this crime should reach the lowest extent of “forcible”, but should not reach the highest extent of “killing”. The restriction mentioned by the former opinion will undoubtedly reduce the extension of the crime. Even though the extent of violence or coercion exceeds the extent of violence or coercion required for the crime of rape, from the perspective of legal evaluation, it can be certain that it constitutes this crime, and only when other crimes are also committed shall the problem of quantity of crime be handled.

  B. Case expression of the idea of rule of law

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