The Value and Implementation Rules of the Principle of Legality in Criminal Law

The core connotation of the contractualization of criminal law is the contractualization of the principle of legality. The unitary value of the principle of legality (limiting the state's criminal law power to protect human rights) is the mainstream view in the current criminal law academia in China. This article argues that this is an outdated concept that should be replaced. Historical materialism holds that the emergence and utility of any entity (including tangible and intangible things) are connected to and constrained by specific temporal and spatial contexts. The functional positioning of the principle of legality depends on the positioning of the relationship between the state and the citizens. In the context of a pre-modern rule of law society, the social structure consists of the oppressive (exploiting) class (represented by the state) and the oppressed (exploited) class (mainly the majority of citizens). With the development of productive forces and changes in production relations, advanced forces emerged in society that could politically counter the state's repression, and after a long struggle, forced the state to formulate written criminal laws, limiting the arbitrary initiation of criminal law power, which was a constraint that the state was forced to accept. Clearly, the principle of legality that emerged in this scenario has only one social function: to limit state power to protect human rights.

It should be noted that the social value it reflects in real life is far less than the social value in theoretical analysis. As history progresses, the social structure has undergone fundamental changes, and the two opposing classes no longer exist; the state and citizens do not have an antagonistic relationship on a macro level. Improving the human living environment, resisting major natural disasters and man-made calamities (including serious crimes and terrorist attacks), and enhancing the quality of life are all fundamental national plans concerning people's livelihoods that citizens rely on the state for. At the same time, the state's governance function has also shifted from past control to primarily serving the people. The relationship between the state and citizens has undergone a historic transformation from a pre-modern rule of law society characterized by opposition to a modern rule of law society characterized by unity. Correspondingly, the principle of legality has become a social contract between the state and citizens in the criminal field, evolving from a forced acceptance of a treaty to a proactive and conscious legislative technique for the state. Article 28 of our Constitution states, "The state maintains social order, suppresses treason and other criminal activities that endanger national security, punishes activities that harm social security, disrupt socialist economy, and other crimes, and punishes and rehabilitates criminals." Article 37 states, "The personal freedom of citizens of the People's Republic of China is inviolable."

No citizen shall be arrested except with the approval or decision of the People's Procuratorate or the decision of the People's Court, and executed by the public security organs. Illegal detention and other methods of depriving or restricting citizens' personal freedom are prohibited, as are illegal searches of citizens' bodies." The 1997 Criminal Law, "According to the Constitution, combined with China's specific experiences and actual situations in fighting crime," stipulates the principle of legality in Article 3: "Criminal acts explicitly defined by law shall be convicted and punished according to the law; acts not explicitly defined as criminal by law shall not be convicted or punished." The principle of legality clearly indicates that criminal law legislation is an agreement on rights and obligations established by the state and citizens (through elected representatives) in the criminal field, which is the criminal law contract. As a contract between the state and citizens: citizens' rights correspond to state obligations—if citizens do not commit crimes, they have freedom of action, and the state has the obligation not to invoke criminal law; citizens' obligations correspond to state rights (the power to punish)—if citizens commit crimes, they bear the obligation to be punished, and the state has the right to invoke punishment. As a social contract between the state and citizens in the criminal field, it logically leads to the conclusion that the principle of legality and its carrier, criminal law, operate similarly, possessing dual functional values: punishing crimes and protecting freedom.

Based on this, further consideration of the state's handling of the relationship between crime and punishment, according to the spirit of the contract (equality, checks and balances), is as follows:

Situations that citizens may accept as "no punishment for the guilty" are already stipulated in the general principles of criminal law, such as age of responsibility, suspended sentences, and Article 37 of the Criminal Law stating, "For crimes with minor circumstances that do not require punishment, criminal penalties may be waived," etc. Many provisions regarding statutory mitigation of punishment, leniency in punishment, and Article 63, paragraph 2 (mitigation of punishment in special circumstances) all belong to "heavy crimes with light penalties."

The two situations that citizens cannot accept are both incompatible with the spirit of the criminal law contract, namely the bottom line of the principle of legality: "two no's"—not punishing the innocent and not heavily punishing minor crimes, which are the bottom line that must not be breached in implementing the principle of legality. The bottom line of the principle of legality is the boundary of the judge's discretionary power. According to the concept of the contract, as long as the reasoning is sufficient and does not exceed the boundary, the judge's discretion does not violate the law. In current judicial practice, there are two undesirable tendencies regarding judicial discretion: one is exercising discretion where it should not be exercised, and the other is not exercising discretion where it should be exercised. The common point of both is the lack of rational treatment of the principle of legality and its bottom line; the difference is that the former ignores the principle of legality, while the latter rigidly adheres to it. Correctly implementing the principle of legality should be based on the spirit of the criminal law contract, ensuring that the bottom line is not breached, maintaining legality in convicting, and focusing on reasonableness in acquitting (including leniency in sentencing).

Discretion should not be exercised arbitrarily, even though the causes are diverse, including both subjective and objective reasons from judicial officials, it is clear that this is wrong. However, the failure to exercise such discretion is often not considered an error, and some may even present a theory closely aligned with regulations as justification. The focus on reasonable outcomes in exoneration (including leniency) aims to require judicial decisions to consider social effects based on legal outcomes, namely the acceptability by the public. The academic community has previously debated a case regarding the crime of damaging transportation tools under Article 116 of the Criminal Law. The perpetrator intended to cause a train derailment by placing a long boulder on the tracks and then leaving. Soon realizing the severe consequences, he returned to remove the boulder before the train arrived, thus avoiding serious outcomes. The provision of Article 116, which states that "those who damage... to the extent that it poses a risk of derailment or destruction, but has not yet caused serious consequences, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years," could apply to this case, warranting at least a three-year prison sentence. However, in reality, there was no social harm caused, and the subjective remorse negated the culpable mindset, leading the general public to believe that a three-year sentence was too harsh. What to do? The case is simple, but it presents a dilemma for prevailing criminal law theory. In terms of common sense, it should be treated as a case of crime cessation (for those who cease the crime without causing harm, punishment should be waived), but prevailing criminal law theory holds that Article 116 stipulates a dangerous crime (specifically a dangerous crime), and once the act is completed, it constitutes a completed crime, making it impossible to establish a cessation of crime thereafter. The function of theory is to make people wise and to handle matters reasonably. However, it should also prevent theories from becoming rigid dogmas that trap themselves, leading to embarrassing situations like "living people being suffocated by urine." This phenomenon is likely not just a rare case in academia. Some scholars seek alternative paths, arguing that Article 116 is a provision for the "attempt" of the crime of damaging transportation tools (indicating it is not "completed"), and in the absence of serious consequences, it should be recognized as a cessation of crime. To support the recognition of cessation of crime, it collides with prevailing theory, as dangerous crimes (most scholars adhering to prevailing theory believe Articles 116 and 117 are dangerous crimes) do not correlate with "attempt." In judicial practice, when handling this case, there is no need to rely on dangerous crime theory; it suffices to objectively describe the event's occurrence by invoking Article 116, analyzing subjective and objective elements "during the commission of the crime," and directly citing the general principles of criminal law Article 24 regarding cessation of crime, which is reasonable and does not contradict the principle of legality in crime and punishment. Emphasizing reasonableness helps simplify complex issues. In practical rationality, one should avoid complicating simple issues. Normatively, the principle of legality in crime and punishment is a system guarantee for achieving judicial justice, while judicial discretion is a mechanism guarantee for pursuing case-specific fairness.