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The Theory of Sentencing Impacting CriminalNorm Identification not Violating the Principle of Legality(PDF)

《南京师范大学学报(社会科学版)》[ISSN:1006-6977/CN:61-1281/TN]

Issue:
2015年01期
Page:
49-60
Research Field:
法制现代化研究
Publishing date:

Info

Title:
The Theory of Sentencing Impacting CriminalNorm Identification not Violating the Principle of Legality
Author(s):
ZHAO Xi
Keywords:
theory of sentencing impacting criminal norm identification principle of legality determination of punishment by crime determination of crime by punishment
PACS:
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DOI:
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Abstract:
The theory of sentencing impacting criminal norm identification, characterized by advocating substantive justice, emphasizes the counteraction of sentencing on the definition of a specific criminal norm. However, there are many criticisms of its violating the principle of legality in academia. Among others, the dangers the theory is thought to cause mainly include: abusing judicial power, violating the restrictions of Tatbestand, and breaking the traditional relationship between crime and punishment. However, the criticisms of abusing judicial power and breaking the established relationship between crime and punishment are actually only based on abstract notions and thus rather weak. But it is definitely true that the theory at issue cannot violate the constraints of Tatbestand. Only on this condition can we argue that there is something reasonable in the theory of sentencing impacting criminal norm identification. And only from this perspective can we say that the theory at issue is not in conflict with the principle of legality.

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Last Update: 2015-02-28