College for Criminal Law Science of Beijing Normal University

Article 15(1) of the ICCPR refers to the retroactivity of criminal law in the following terms:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

Article 12 of criminal law of China also provides the issue regarding retroactivity of criminal law with two sections, which read:

If an act committed after the founding of the People's Republic of China and before the entry into force of this Law was not deemed a crime under the laws at that time, those laws shall apply, if the act was deemed a crime under the laws in force at that time and is subject to prosecution under the provisions of Section 8, Chapter IV of the General Provisions of this Law, criminal responsibility shall be investigated in accordance with those laws. However, if according to this Law the act is not deemed a crime or is subject to a lighter punishment, this Law shall apply.

The effective judgments that were made according to the laws at that time before the implementation of this law shall remain valid.

Comparing the ICCPR and the criminal law of China, we can find that there are some obvious differences between them. According to the third sentence of Article 15(1) of the ICCPR, if the punishment against a kind of crime is amended to be lighter before an offender who has been sentenced to such irreversible penalty as the death penalty is executed, the offender shall benefit thereby. That is, this amended provision has a retroactive force over res judicata. However, in accordance with the criminal law of China, any amended provision doesn’t have a retroactive force over final and binding judgment.
    By comparison, according to the provision of the ICCPR, the number of actual execution could be decreased, which swims with the tide of strictly limiting or even abolishing the application of death penalty of the world. Therefore, the provision of the ICCPR is preferable to that of the criminal law of China. Basing on such understanding, I consider that the words “Except that binding capital judgment hasn’t been executed” shall be added at the beginning of article 12(2) of Chinese criminal law.