Selected Papers of The Jurist (法学家), Volume 2
- Renmin Chinese Law Review: Selected Papers of The Jurist
Edited by Jichun Shi
Chapter 2: Restrictive interpretation of constitutionality on the clause of 'the exception to favourable retrospect' in the criminal law: analysis based on the Niu Yuqiang case
Article 12, Section 1 of the Criminal Law establishes the principle of 'applying the old law with exception of less punishment in the new law' in terms of the application of old and new law, but Section 2 of this article, which states that 'the effective judgments made in accordance with the laws in force at the time before the entry into force of this Law shall continue to be effective', embeds an exception in this principle. If 'less punishment' could be labeled as 'favorable retrospect', since it regulates an exception to the principle of 'non-retroactivity of criminal law', then Article 12, Section 2 could be called 'the exception to favorable retrospect' clause. The Niu Yuqiang case, which aroused wide concern recently, involves the application of this clause. On April 28, 1984, Niu Yuqiang, a main member of a criminal gang, participated in and instigated armed fights, and picked quarrels on several occasions. He was sentenced to the death penalty with a two-year probation by the Intermediate People's Court of Beijing for the crime of hooliganism. Afterwards, Niu was escorted to Shihezi Prison, Xinjiang Autonomous Region, to serve his sentence.
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