Abstract

Info

Title:: Retroactivity of Criminal Judicial Interpretations: An Analysis Focusing on Provisions of “Prohibition” in the Judicial Interpretation of the Crime of Smuggling

Keywords:: judicial interpretation; retroactivity; smuggling crime; absolute prohibition; relative prohibition

Abstract:: In China’s legislative context and the theoretical discourse system of criminal law, the retroactivity of judicial interpretations of criminal law seems to be not only a false proposition that is politically incorrect, but also a false topic that does not receive any support from both theory and practice. But if we take the issue seriously, we will find that the legal construction caused by judicial interpretations is very common. In the judicial interpretations, the interpretation of the provisions concerning prohibition in the crime of smuggling as “including absolute prohibition and relative prohibition” is an unreasonable legal construction, which is suspected of exceeding authority. The prohibition in the crime of smuggling is “relative permission” and should not be interpreted as “relative prohibition”. As for the criminal justice interpretation having the effect of legal construction, we should acknowledge its status as a part of criminal law and make it clear that it has no retroactivity when it does no good to the parties involved. This is not only in line with the reality but conforms to the law as well. In doing so, the core value of the principle of legally prescribed crimes and punishments can be maintained to the greatest extent.