Law and Globalization in the Context of Chinese criminal law, public law changes --- Comment on the grounds of globalization

1、Law and Globalization in the Context of Chinese criminal law, public law changes - Comment on the grounds of globalization  Abstract: In the context of globalization, some countries, especially some developing countries to a market-oriented legal development and reform movement, thereby promoti

2、ng democracy, rule of law and human rights continued to develop. The new criminal law established the principle of legality, the principle of universal jurisdiction, the new Code of Criminal Procedure under the presumption of innocence, lawyers involved in criminal activities ahead of time, all in o

3、rder to promote the rule of law, protection of human rights-based values. These provisions are in the international concept of human rights protection under the influence of globalization on the law made by the positive response. Globalization is not either-or choice of law, but how to properly face

4、 the extent to which use, in order to advance the rule of law the problem of modernization. Globalization of law has become an irresistible trend, for the sovereign state, the current theme is how to properly handle the law and legal globalization, localization, the legal relationship between global

5、ization and modernization of the legal system. In view of this, on the one hand to strengthen international exchanges and rational use of human civilization the rule of law; the other hand, wants to maintain its independent character, which is the essence of the modernization of China's legal sy

6、stem is located.      Key words: law; criminal law; Public Law Globalization      Public law globalization is an important legal development in today's world one of the trends. The basic performance of public law globalization, the internationalization of

7、domestic law and international treaties, domestic-oriented. While the globalization of public law is also looming, but because of the globalization of public law and national sovereignty involved in coordination, therefore, deserves our close attention to the globalization of public law.   

8、;   1      Criminal law, namely, criminal law, criminal procedure code, is a national legal system of the basic laws. From the criminal justice and criminal legislation's history, not only of criminal justice has been considered to be solely internal affairs of a so

9、vereign state, no country can interfere, and the criminal legislation has also been considered to be solely internal affairs of a sovereign state, a country's criminal legislation is its own affairs. On the one hand, a country can conduct criminal legislation to their own needs, without the need

10、 to consider the legal situation in other countries; the other hand, other countries can not interfere in other countries, criminal legislation. However, as the world's economic and political development, the relationship between the countries of the world increasingly close interaction between

11、national legislation, the phenomenon occurs, a legal globalization. Criminal legislation is not the situation of other countries affected has changed. National criminal legislation must take into account the legislative situation in other countries. China is no exception. In China in 1996 and amende

12、d in 1997, "Code of Criminal Procedure" and "Criminal Law" revised "Criminal Law" and "Code of Criminal Procedure" reflects this trend.      (A) the movements of criminal law      1, determine the principle of legality &

13、#160;    The principle of legality in criminal law the bourgeoisie against the feudal era of the field of crime for good at breaking acquired an epoch-making results. The principle of legality of the classic formulation is the absence of express provisions of law not a crime, and law

14、no explicit provision does not punished. The Ideological Origins of legality, is generally considered to be in 1215 King John signed the Magna Carta of the provisions of Article 39, which defined "due process of law" legal thinking. Later, the Italian criminal law scholars Beccaria was mor

15、e clearly put forward the principle of legality, while the German criminal law scholars Feuerbach in his "right positivist principles and the basic principles of criminal law amendments to" do a special discussion. The bourgeois revolution in France after the victory of legality from the r

16、ealm of theory into practice areas. "The French Penal Code," Article 4 expressly provides for the principle of legality: "No criminal conduct in the penalty expressly provided for under the law, any person sentenced to violate police crimes, misdemeanors and felonies." "Fren

17、ch Penal Code," Upon enactment of the and soon became a model for countries around the world criminal law legislation, the principle of legality around the world accepted as a fundamental principle of criminal law. Beginning of the 20th century, the basic principle of legality has been expressl

18、y provided countries in the world. New China's first Criminal Code does not require the principle of legality. Since then, China has provided around the principle of legality should be a heated debate took place. The provisions of the Criminal Code should be advocates of the scholars believe tha

19、t the principle of legality: China's criminal law principle of legality to take is the inevitable requirement of the rule of law is a necessary requirement for strengthening the socialist rule of law. Uphold the principle of legality and the prohibition and so on, in line with the world trend of

20、 development of the Criminal Code; country that upholds the principle of legality is prohibited and so on, is conducive to safeguarding China's Criminal Law of the rule of law and our country as a whole the level. In the end, scholars have absorbed the new Penal Code's recommendation to repe

21、al the analogy with a system whereby the principle of legality, so that China's criminal law legislation has reached a new height.      2, establishing the principle of universal jurisdiction      Principle of universal jurisdiction, the earliest embryonic

22、 stage in the Roman Empire Justinian Code. The early 17th century, the famous Dutch jurist Hugo Grotius the first time and demonstrates the principle of universal jurisdiction. In his view, human society, the phenomenon of widespread violations of natural law, and these crimes against humanity and a

23、 common hazard. Thus, he proposed, for violations of natural law of crime, the offender should be the host country of criminals, "or to prosecute or extradite." Since then, many Western scholars that transcend geography, nationality, national interests to protect the jurisdiction of the pr

24、inciples of the principles of analysis that the principle of universal jurisdiction is reasonable. After the reform and opening up, China has also appeared in international crimes. In order to protect normal international exchanges, the fight against international crime, China has successively joine

25、d the "Tokyo Convention", "Hague Convention", "Montreal Convention", "on the Prevention and Punishment of Internationally Protected Persons, including Diplomatic Agents, the Convention on the offense" and so on international treaties. The signing of an interna

26、tional treaty obligations associated with, and my soon to join such treaties, they should bear the criminal jurisdiction relating to obligations of international crimes. As a result, China's legislature in 1987 in "The People's Republic of China on the international treaties concluded o

27、r acceded to the crimes under the jurisdiction of the decision" provides that: China's contracting or participating in an international crime under the Convention, China should exercise its criminal jurisdiction. The new Penal Code has absorbed the above requirements, the new Penal Code Art

28、icle 9 states: "For the PRC has signed or acceded to the crimes under international treaties, the PRC's treaty obligations in the context of the exercise of criminal jurisdiction, the application of this Law. " According to the provisions of the Penal Code Article 9 and the relevant in

29、ternational conventions, China's criminal law provides for the crime of aircraft hijacking, violent crime of endangering flight safety, organizing, leading or participating in terrorist organizations, crime, smuggling of nuclear materials, the crime of money laundering, etc., so that China's

30、 criminal law to international Crime has criminal jurisdiction.      (B) The Law of Criminal Procedure trends      1, established the presumption of innocence      Western countries denied the presumption of innocence is a medieval inquisit

31、orial system, formed and developed on the basis of the principle of a Code of Criminal Procedure. It is with the principle of legality of criminal law combined to become Western countries, an important basis for the criminal law. The establishment of the presumption of innocence in the law began in

32、France in 1789 promulgated the "Declaration of Human Rights", which Article 9 provides: "Any person who has not been declared guilty in the past, should be presumed to be innocent." Since then, many countries have successively in the constitution or the law makes provision for th

33、e principle of presumption of innocence. Italy's 1947 Constitution, Article 27 provides: "The defendant was convicted prior to the end shall not be considered guilty." After World War II, it summed up the lessons of Nazi-fascist rule, greater attention to human rights protection, so th

34、at the presumption of innocence in the Legislative get further developed. United Nations General Assembly in 1948 adopted the "World Declaration of Human Rights", the next United Nations General Assembly on Civil and Political Rights, Convention, and the European Convention on Human Rights

35、 reaffirmed this principle. Due to historical reasons, China's legal profession, the presumption of innocence, many people have prejudices and misunderstandings, resulting in this principle is not in the original Code of Criminal Procedure were affirmed. Scholars believe that China should provid

36、e for the presumption of innocence. During the revision of the Code of Criminal Procedure, the legislature concluded 10 years of experience in the implementation of the Code of Criminal Procedure, based on based on national conditions, draw on useful experience of foreign countries, makes the follow

37、ing provision: "without the people's court ruling in accordance with law, any person found guilty shall be determined . "This provision makes it clear: First, the court's decision must be based on the facts and the law; second, the verdict must be in accordance with legal procedure

38、s; third, without the people's court decision, not determine guilt of others. Principles set forth in China's Criminal Procedure Law, unlike the West's presumption of innocence. Although we can not say that my presumption of innocence in criminal law the principle of copying the West, bu

39、t China's Criminal Procedure Law has absorbed the spirit of the West, the presumption of innocence.   2, ahead of the lawyers involved in criminal activities, the time      The former Code of Criminal Procedure provides that: After the trial court decision "will be

40、a copy of the People's Procuratorate of the indictment to be served no later than seven days before the hearing the defendant, and inform the defendant can be entrusted to counsel, or if necessary, appoint counsel for the accused. "generally agreed that lawyers, lawyers involved in criminal

41、 proceedings, the time is too pressing, would not achieve its proper role. In view of this, the revised Code of Criminal Procedure provides that: public prosecution cases from the case to the date of examination and prosecution, criminal suspects the right to appoint counsel; private prosecution cas

42、es entrusted to the defendant the right to counsel at any time. This provision is consistent with the practice in most countries. Common law countries have adopted the system of lawyers intervene in the proceedings earlier in advance, and now civil law countries have absorbed this approach. This pro

43、vision is also consistent with China's United Nations, the spirit of the relevant legal documents. The United Nations "Basic Principles on the Role of Lawyers," states: "All individuals have the right to request assistance of a lawyer of their choice and the protection of their ri

44、ghts and defend them in all stages of criminal proceedings." "Governments should also ensure that the All have been arrested or detained person, whether or not subject to a criminal charge, shall have prompt access to a lawyer, and in any case not later than the date of arrest or detention

45、 of 48 hours. "      Through the presentation of China's Criminal Law, Criminal Procedure Code changes, we see that China's Criminal Law, Criminal Procedure Code to the direction of globalization: more and more attention to China's criminal legislation in drawing

46、 the common achievements of human civilization development, such as the provisions of the presumption of innocence in China ; China began to international law and domestic criminal legislation, it will be our participation in international conventions or international treaties into domestic law, suc

47、h as new criminal law principle of universal jurisdiction. This can not but arouse our attention.      Two      Including criminal law, criminal procedure law, including the entire face of economic globalization, the international protection of human rights, d

48、emocratic governance, judicial review against the backdrop of the universalization of the emergence of a globalization trend.      (A) the integration of world economy      Economic globalization is a new system of international relations, including production

49、, finance and science and technology in three aspects of globalization. Fundamentally speaking, economic globalization, is a developed country-led, multinational corporations as the main driving force of the worldwide industrial restructuring. This time, adjustment of industrial structure not only r

50、eflects the overall shift in a number of industries, more importantly, is a part of an industry the transfer of production processes. Also, the worldwide industrial restructuring is occurring not only between the developed cross-investment, corporate mergers, but also in developed countries, their o

51、wn labor and resource-intensive industries to developing countries. Of economic globalization, some countries are to achieve an investment and actively create a favorable environment for investment. This national Government has proposed a new requirement: The Government must change their functions,

52、improve efficiency, build a clean, diligent, pragmatic and efficient government. In the context of globalization, the Government must by law, not only within countries properly handle the many affairs, but also to coordinate their relations with other countries. Create a good environment, not only n

53、eed to standardize government behavior, but also a number of criminal acts need to be combated. In short, economic globalization from the profit motive behind it. Clearly, as economic globalization, it is bound to make France a global demand naturally occurring public law, this globalization trend.

54、     (B) the internationalization of human rights protection      Human rights as the right to the most general form, was originally a country's internal affairs, mainly by a variety of categories, a variety of levels of organic composition of interrelated

55、 and mutually cross-system of rights. From the 18th century to the first half of the 20th century, human rights, national laws have been widely adopted principles. After World War II, human rights, the content and scope of a new development, human rights is beyond the scope of domestic law, the impo

56、rtant principle of international law. As sovereign countries continue to attach importance to human rights issues, through the immobilization of human rights legislation, and through recognition, ratification and accession to international human rights organizations or through the acceptance of inte

57、rnational human rights protection agreement or convention, and to be internalized by domestic law, in the domestic implementation. The international protection of human rights are mainly related to the adjustment of special subjects and the protection of human rights as well as the adjustment of the

58、 contemporary collective human rights. International protection of human rights play a role in two situations: one is a clear, internationally recognized principles of international law or the protection of human rights norms; the other is there must be protection of the State expressly agreed to un

59、dertake certain aspects of human rights obligations. In essence, human rights issues within the domestic affairs of jurisdiction, but must admit its international aspect, and with the development of international relations, human rights, international factors that show the growing trend. State law p

60、rotection of human rights, naturally necessary to the protection of international human rights conventions or agreements as a frame of reference, and constantly to enact, amend, or repeal domestic laws. Different types of countries in the world through different or the same way as human rights were

61、to be guided and protected to form the world's human rights protection of public law globalization. In fact, China's criminal law changes, that is, a strong international response to human rights protection.      Reposted elsewhere in the paper for free download http:/ (C

62、) the democratization of government administration      The tide of economic globalization in the world under the impact of government not only properly handle the internal affairs must also coordinate with other countries. A government's management capacity and level, directly affecting the people of the country to their degree of confidence, while