Abstract:Confining the application of retroactivity with the leniency principle to pending cases helps to preserve the solemnity and stability of effective judgments to a certain degree. However, this approach may contravene the principle of balancing legal interests and erode the substantive justice of punishment in an era of proliferating statutory offenses and constantly changing laws. Comparative analysis of international documents and foreign laws demonstrates that the res judicata theory based on finality concerns has been superseded by modern doctrines of human rights, and the principle of legal certainty now yields to the higher constitutional mandate of safeguarding civil liberties and rights. Given this evolution in res judicata theory and requirements of modernization of criminal rule of law in China, it is not only necessary but also feasible to apply retroactivity with the leniency principle to effective judgments. Therefore, this article suggests that Paragraph 2 of Article 12 of the Criminal Law be amended, and a section providing for “Modification Proceedings for Applying the Principle of Retroactivity with Leniency to Effective Judgments” be added to the Criminal Procedure Law.

Keywords: the principle of retroactivity, effective judgments, the res judicata theory, human rights protection

 

Author:Liu Renwen, research fellow, CASS Institute of Law;

Source: 9 (2025) Law Science Monthly.