关于刑法溯及力的两个问题

我国刑法应支持建立溯及力可及于已生效判决的制度,即对"新法认为无罪且刑罚未执行完毕"的案件,即使已经作出生效裁判,仍然应当予以释放,不再执行;对由"罪重变为罪轻"的案件,只要还处在原判刑罚的执行过程中,也应允许依照新法予以改判。此外,刑罚溯及力中的"从轻"应理解为"最有利被告",当不同的有利被告人的情形分别出现于新旧刑法中时,应可以分别适用新旧刑法的有关规定,在行为时法和裁判时法之间存在中间法时,如中间法最轻,应适用中间法。

Two Problems Concerning Retroactivity

The criminal law in China should change its attitude towards retroactivity and allows the scope or effect of a rule or a statute to extend to effective judgments.This means a person should be released where he/she is innocent under the new law even if he/she was sentenced provided that the sentence has not been completed.In cases where a felony become a misdemeanor under the new law,the sentence should be reduced so long as it has not been completed.In addition,as to retroactivity,"using leniency" should be construed as "most advantageous to the defendant." Where there may appear favorable conditions under the old and the new criminal laws respectively,the provisions in both the old and the new laws can be applied.Where a law is enacted between the perpetration of a crime and the judgment imposed on the perpetrator and where the punishment under the law is the lightest,the law should be applied.