"China law" in 2010 fourth periodical ascended Chen "interpretation on form to declare," Zhang "substantive interpretation theory advocating"

 

 

To promote substantive interpretation theory

Zhang Mingkai.

"Chinese law" in 2010 fourth

 

Abstract the constitution explanation can not stay in the literal meaning of the law, to protect the legal interests must be guided, illegal behavior and responsibility to be punished; to follow the principle of legality under the premise, can make further explanation, in order to achieve the proper punishment. In the interpretation of constitution, can not be divorced from the facts of the case; in legal questions, not in favor of the defendant as the explanation. Interpretation on substance form side while maintaining the legal principle of crime and punishment and the essence of the side, is conducive to the realization of rationality of the scope of punishment, but also conducive to the realization of the function of constitution.

Keywords essential interprelative theory explanation on the form constitution interpretation idea statutory punishment scope of crime

 

In recent years, the criminal law circles of our country forms of interpretation and interpretation on substance debate. Although some disputes may be due to misunderstanding, or did not hit the mark, but the debate is of great significance, it is necessary to further discuss.

The basic content, essence of the interpretation theory

The author advocated the substantive interpretation theory, is mainly directed against the elements of the interpretation (including compliance judgment and elements related to attempt to explain the problem elements such as ), the basic contents (or required) can be summarized as the following three points: (a) on elements of a protection interpretation must be guided by law, and not only of the stay in the literal. In other words, explain one of the constitutive elements of the crime, the protection of law must first clear the crime, to determine the specific content elements and may have in the criminal law the meaning of the term.

Any one language may have more than two kinds of meaning, for any one of the law may be more than two kinds of explanation, if did not explain the direction and objective, could not explain the elements of. The purpose of criminal law is to protect legal interests, provisions will be punished for violating legal interests behavior type ( illegal) . "All criminal elements in one or a plurality of legal interest, therefore, in the condition of all forms, can always find the and a legal interest relations. In other words, namely, the provisions in the specific provisions of criminal law, have their specific interests as its object of protection. Therefore, it benefits all objective elements and subjective form the central element of the described concept. Therefore, law has become an important tool for the interpretation of criminal law." If the four elements of the traditional system, the objective elements of crime, subjective interpretation must be the object of the crime as a guide; if three by Germany, Japan class or two class system, that the elements are illegal type, because of the illegal nature of the infringement and to the legal interests of the threat, constitutive requirements interpretation must be based on the legal interest.

The protection of law to the criminal law can not be explained from the elements, and may not make judgments on the constituent elements of a compliance. For example, "criminal law" article 243rd paragraph first paragraph: " concoctive fact frame others, attempt to subject others to criminal investigation, if the circumstances are serious, is less than three years imprisonment, criminal detention or." If only from the literal meaning interpretation, constitution, it will be difficult for the following two cases draw appropriate conclusions.

Example: the beggar B because winter is no place, then request a fabricated B stealing a 1000 yuan in fact, report to the judicial organ, the B get punishment, to survive the winter in the prison, not in exile. In accordance with the a B at the request of the facts of the crime, fabricated on B, so that B was sentenced to 5 months in detention.

In two cases, A in China through the mail written evidence to a foreign judicial authorities accuse Chinese citizen B deliberately killed a foreign citizen C. Although a and A are fabricated accusations, framed by others, and attempt to subject others to criminal investigation, but not to conclude a and A are the establishment of crime of false accusation conclusion. (1) if false protection against sin Yi is a citizen's personal freedom, then, a behavior because the available B commitment does not constitute the crime of false accusation; on the contrary, the behavior of A lead to B by a foreign judicial organs shall be investigated for criminal risk, a false accusation. (2) if false protection against crime benefit the normal judicial activities is the state, then, a behavior because of violations of the law and the establishment of crime of false accusation, A behavior does not constitute crime of false accusation, because our country criminal law of our method is not necessary to protect foreign normal. (3) if false protection against sin Yi is the national normal judicial activities and the personal freedom of citizens, a and A behavior are not established false accusation. (4) if false protection against crime interests or national normal judicial activities of the citizens' freedom of the person, a and A are set up false accusation. It is not difficult to see that, if left the protection of the interests of the law refers to

Lead, the cases of one and two cases, it is impossible to draw appropriate conclusions.

Similar examples are too numerous to mention. Linked to this is, even if the provisions of the criminal law on the elements of the written expression did not change, but if the protection of law changes (such as a crime from hindrance social management order crime adjust to the infringement of citizens' personal rights, democratic rights of crime) interpretation is inevitable, the elements of the change, not because the words did not change, still used the original. ②

(two) criminal entity is illegal and responsibility. And so, elements of illegal, illegal behavior to must make is punished; liability on the elements of interpretation, must make the behavior of the liability to be punished. The in other words, must will literally with elements, actually does not have the punishment behavior from the elements outside. The basic reason for the above-mentioned point of view is: language is not accurate, often contains some factors may be misunderstood; many definitions of epitaxial always wide to be defined matters; criminal law only punishment is punished illegality and responsibility behavior, also because of this, China's criminal law on the crime of many special provisions the quantitative factors, in order to distinguish crime and illegal actions ; however, there are a lot of articles is not set on the quantitative elements of the element, if the form of interpretation, must be not worth punished behavior is also consistent with the only elements; substantive considerations, will be necessary and punishment control in the rationality. For example, "criminal law" the 245th paragraph first: " illegally search a person body, residential, or illegally intruding into others' residences, and three years in prison or." "Public Security Management Punishment Law" fortieth article: on "illegal residence or unlawful search of the body of others invade others", detention and. Obviously, the body or illegal search and not any illegal infringement of residential behavior of others, are worth to be punished. So, should be based on reasonable interpretation "substantial criminal law" the provisions of article 245 of the constitution, will not be punished illegal encroachment and illegal search out of the "outside" 245th requisites to constitute a crime. Moreover, "criminal law" the provisions of the first paragraph of article 389 : "to seek illegitimate benefits, gives property to a state functionary, bribery." If the form of literally, a job of college students, through the civil service examination was not originally, but in order to enter the next interview, give staff a box of the value of 200 yuan tea behavior, also constitute bribery. But in the Chinese, no one will accept this conclusion. Also because such, judicial interpretation of the provisions, the bribery amount in the 1 million, or bribe amount is less than 10000 yuan but there are other serious circumstances, they shall be placed on file. To determine the this file standard, it is essential to explain the author calls, i.e. when the criminal law text presentation contains not worth punished behavior, should be based on the interpretation of the constitution, this act in addition to constituent elements.

Dr. Deng Zibin made criticism on this point: " criminal law, of course with the text as the carrier, may not contain not worth punished behavior, because it is the legislators absurd, it is' not to legislative assumption." ⑥ but, its form, if literally interpreted constitution, the behavior of students without any point does not comply with the "criminal law" the first paragraph of article 389 ; restrictive interpretation and to limit the method exists, is because the criminal law text presentation may contain not worth to be punished. Second, even if the formal interpretation on the very elements of respected behavior, also think self-defense, emergency hedge with elements; since proper behavior may be contained in the elements of the words of the unfair, not worth to be punished behavior of course there may be included in the elements of the words. In China, many judicial interpretations related elements added to the Constitution in words, improve the crime starting point or standard, this is the reason why. Thirdly, the criminal law itself also admitted that he may contain not worth punished behavior on the constitutive expression. For example, the Russian Criminal Law provisions of the second paragraph of article 14: "as (or inaction), although this code contains provisions on a behavior characteristics in form, but has little effect (minor), has no harm to the society, it shall not be deemed as." So is the Chinese "criminal law" article 13 proviso. Fourth, indeed, will obviously not crime case interpretation to the elements, is absurd for anyone. However, at the critical point is not uncommon phenomenon, need a clear "for lawmakers are absurd" judgment data and criteria. Moreover, this formulation is itself a substantive theory of righteousness. For example, if the student's behavior into the crime of offering bribes shall be punished for lawmakers are absurd, or that the interpreter can not determine the behavior is a crime, it is essential to explain. Fifth, do not consider the penalty according to the law, only the textual representation of the crime phenomenon, not imagination and fiction, but quite common. For example, to many people the loan for the production and business operation behavior, identified as the crime of illegal absorbing public deposits; would not be allowance, fraudulently tax special Xukai value added invoice identified as acts of making out special invoices for value-added tax from the true goal and; will exit visa types not identified as acts of stealing state ( edge) environmental crime; the residents move when handling the ancestral Ivory behavior, to the illegal transport of precious animal endangered wild, product crime investigation; will contract the woodland farmers unauthorized felling of dry pine saplings planted, to live the identified as acts of crime of wanton cutting of forest; the villagers sell dead tree the illegal sale of act of State Key Protected Plants of sin; will ride on vehicles carrying small amounts of drugs for their smoking behavior to recognize for the crime of transporting drugs; people above three secret promiscuous behavior as (as) assembled licentious actives crime; because of no account, in order to cash security unit and putting money into their own account identified as acts of misappropriation of public funds ( or misappropriation of funds). Formal interpretation might say, this is the judicial organ do wrong case, rather than formal interpretation wrong theory. However, if the further question why they do wrong case, the answer may be they of the law only made form, literal interpretation, without considering the rationality and necessity of punishment from the essence.

(three) the meaning of the core when a behavior is not in the words of criminal law, but the necessity and rationality of punishment, should be in conformity with the principle of legality premise terms for expansion, to the criminal law. In a word, in the premise of follow the principle of legality, can make the defendant is not conducive to expanding interpretation, so as to realize the validity of punishment.

The vast majority of words are the core meaning and edge meaning. The core meaning of the words of criminal law may be relatively clear, but to the edge extensions would lead to the extension of fuzzy, as for how to determine the extension, and can't find the answer from the language itself, and the need for substantial judgment. A behavior, from its criminal terms the core meaning of the distance farther, interpreted as a crime are less likely to ; necessary the penalty is higher, be interpreted as criminal chances. In other words, "explained the essence of tolerance, and legitimacy of the essence (the necessity of punishment) is proportional to the distance, and the French usually semantics." And so, not only consider the behavior and the core meaning of the words of criminal law's distance, also want to consider the behavior of the illegality and liability; necessary punishment is higher for the more, the core of criminal terms distance of ease, to expand the interpretation of possible.

But some people think that substantive theory does not speak, or that the essence of the interpretation theory claims that are better than nature form. In fact, firstly, interpretation on substance is not formal, not against interpretation, but oppose in any occasions simply by the form of the interpretation plays the decision role. The in other words, that the substantive explanation theory, form side simply focus on the legal principle of crime and punishment is not enough, is not enough for the constituent elements of a compliance forms of judgment, must from the essence of judgment whether there are violations be punished and accountability, or must be from the rationality and necessity penalty point of view to explain the elements. so, substantial interpretation is to follow the principle of legality is the premise of. If say, formal interpretation refers to follow the principle of legality, the author certainly adhere to unified formal interpretation and substantive interpretation. If say, formal interpretation is according to the literal meaning of interpretation of criminal law is to be made in favor of the defendant's interpretation, is to limit the scope of punishment, the author will not be accepted. Secondly, in the essence of the interpretation theory, is neither absolute nor substantial form of priority, priority of absolute, but rather depends on the content of conflict. As mentioned above, the behavior cannot be constitutive expression contains ( not in criminal terms may have meaning, of course, inner) form than substance, which shall not violate the principle of legality; in constitution formulation contains not worth punished behavior, of course, substance over form, which should not be punished improper punishment.

Because the constitution of crime is the core of the theory of crime, so in a sense, substantive theory is essence of crime theory, formal interpretation is form of crime. The debate between Professor Professor Ootani Mi in Japan and Maeda Masahide launched in the form of crime theory and the essence theory of crime, also is the interpretation on form and interpretation on substance dispute. Of course, with the constitution theory of associated sense, form of crime theory and the essence theory of crime may also have other significance. For example, the behavior of elements of ( form elements concept) known as the form of crime, the illegal type, the type of illegality and liability said (substantial elements of substantive criminal concept) called. However, this sense of the form of crime theory and the essence theory of crime, theory and essence of the interpretation and the interpretation is not known in the form of correspondence. For example, Professor Ootani Mi is a recognized form of representative theory to explain, but he and Maeda Masahide are the same, have adopted the type of illegality and liability said. 

The author of the theory of objective interpretation of the position for a number of arguments, this will not repeat. Chuan Suo this paper only in limited space, the author thinks about some basic issues of significance, the academic point response to critical interpretation on substance, and reiterated that the substantive theory position, again to promote substantive theory.

Two, substantive theory and principle of legality

Interpretation on substance is not beyond the scope of claim elements essential to consider. In the implementation of the principle of legality of the times, I am afraid no one would claim the tyranny. Assert substantive theory violates the crime punishment legal principle, perhaps out of prejudice, perhaps based on misunderstanding.

(a) must first clarify the form side is the substantive theory and principle of legality, the substantial side. In the author's opinion, the essence of interpretation on the essence of the side not only safeguard the legal principle of crime and punishment in the form of side, but also the maintenance of the principle of legality. The author cited Japanese scholars pointed out: the criminal theory will initially legalism derived include four aspects: the statute law, retroactive law, prohibition of analogy to explain, prohibited Indefinite Penalty and no regular punishment; Chuan Yao this four principle is the legal form of the side, mainly lies in the limit. The essence of the side of the principle of legality consists of two aspects: one is the principle of penalty regulations; two is the penalty regulations and the content of proper principles (including prohibition of improper punishment punishment behavior and prohibit cruelty, unbalanced penalty two content. Substantial side mainly lies in the limited legislative power, full of distrust of legislative power. In other words, the essence of the side against the evil law is law, which is the essence of the rule of law perspective. 

Dr. Deng Zibin at the above statement criticizing the way: "the words of Mr. Zhang seems to have such a few meanings: (1) on substantive aspect attention, is the contemporary crime legalism philosophy results, implies a substantial side failed to combine old, the legal principle of crime and punishment; (2) if the principle of legality is summarized as the form is evil side, the rule of law; ( traditional 3) the form side does not limit the legislative power, accept non. And I think, the three view is worth discussing. Point of view (1) ignore a fact: legalism idea there is no difference between the old and the new, two sides of said, is the principle of legality of artificial separation, and then view (2) questions: who will principle of legality 'only summarized as' form of side face principle? The destiny view of legality, just follow the smell and not follow respectively, not only by his side form. Point of view (3) is leading to subsequent not prudent scholars contextual dislocation era: enlightenment political presumption is the democratic legislation must be good law, therefore, can not be attributed to the evil law legality, more legal cannot be attributed to the part

Statutory really evil place. In short, the legality is separated into two parts, need to be part of another part to redemption." 

This response as follows: (1) I never think of the legal principle of crime and punishment is divided into the old and the new, more do not use the relative legality doctrine and the absolute principle of legality, the principle of legality form and essence of the legal principle of crime and punishment, unsound expression; the legal principle of crime and punishment is only one, but its content (in different periods requirements) will be different, or that the legal principle of crime and punishment era content with. People need to be recognized from many aspects, multi angle to any thing, no exception to the principle of legality is. According to the different constraints on the judicial power and legislative power, the legal principle of crime and punishment as the content of the form side and substantial side, is to understand and grasp the many aspects of the legal principle of crime and punishment on, more conducive to the implementation of the principle of legality, rather than on the legal principle of crime and punishment is separate from. If you don't specify the content of the legal principle of crime and punishment in many aspects, only with "no crime without law", "nulla poena sine lege" to guide the legislation and judicial practice, but not conducive to the realization of the principle of legality. Even if not guilty of criminal law principle of substantial side, people will form side into three or four, but no one would think that this conclusion has artificially fragmented the legal principle of crime and punishment. By the way is, not because the author illustrates the substantial side of the principle of legality, that the author "stressed" or "too much emphasis on" the substantial side rather than the formal side.

(2) within view of the world, in the parliamentary supremacy of the times, to limit the legislative power, legality so at first principle is just the limit of judicial. Even though Beccaria advocated the doctrine of a legally prescribed include the restriction of legislative power ( substantial side), Chuan ¬ but in parliamentary supremacy of the era, it is not possible to legislative power limits as the substantial side of the principle of legality; only in Parliament by the constraints of the era, may propose the legislative power. Chuan Jin recognize evil law is also the law, abide by the principle of legality is the only form side performance. On the other hand, it is because the supremacy of Parliament, so the need for legislative power limit, gradually had the substantive aspect of the principle of legality.

(3) nobody thinks evil law is also the law defect is the principle of legality itself, but the form, the legal principle of crime and punishment are not the evil law is illegal, this is an indisputable. Legality is not evil law place, precisely because of the substantial side of the principle of legality. Chuan Ying

Dr. Deng Zibin for the substantial side also pointed out: "one of the grand narrative, it is the essence of the rule of law...... So they China practice no longer cares about legality 'limit power' this simple principle; second, scholars in the highly 'substantial side' on 'inevitable said form side'...... The whole weakened the legal principle of crime and punishment of persuasion; third about legal clarity ', from' the substantial side derivative...... Also for the expanded interpretation of a green light." 

However, form side is only concerned with the legal principle of crime and punishment, can restrict judicial power; the substantial side puts forward the legal principle of crime and punishment, but also can further limit the legislative power; the essence of the legal principle of crime and punishment side by side, does not mean that the substance and demeaning form side, does not mean that the form side itself is flawed, even thought form side problems, only that form side can not limit the legislative side addition in form; substantial side, make the legal principle of crime and punishment is more convincing and critical tone substantive interpretation of criminal law; strong specificity, forbid penalty punishment inappropriate behavior, this and what kind of interpretation of criminal law did not take the inevitable punishment; instead, no punishment in accordance with the requirements of the improper behavior. Specific requirements will only benefit the people, and will not damage the human behavior to predict the possibility. There are the essence of the legal principle of crime and punishment by criminal law in our country. Professor Chen Zhonglin pointed out in the introduction of Italy criminal law theory: "the principle of legality 'so-called' essence, refers to the tendency of criminal law: (1) essence in law issues, emphasizing 'does not violate the requirement of justice is not a crime...... (2) in the source of criminal law issues, emphasizing the 'no penalty is not a crime'...... (3) in crime essence, that 'no harm to the society is not a crime...... (4) value orientation in law, emphasized personal interests should be subordinated to the needs of the society, the maintenance of social security the basic living conditions of the first as the criminal law. Adhere to the 'legitimacy principle' essence, two conclusions will launch is : (1) social harm as long as the behavior to the extent of the crime, even in the absence of legal provisions, it shall be subject to criminal punishment; (2) if proper social has no harm, even if there is legal expressly, not as a crime."

But I need to point out is, first of all, not all admit the crime punishment legal principle essential side person, will advocate the first (4), the author was against the article (4). Jian Rong secondly, although the author cannot determine the two conclusion is introduced by Professor Chen Zhonglin, or by the Italy criminal law experts Mando Vanni introduction, but in this view, and not by the four front, derived directly behind the article ( 1). Moreover, not a criminal law scholars think that the principle of legality is the substantial side. Professor Chen Xingliang pointed out: the principle of legality completely "materialism is not the principle of legality in the form of negation in the side, but the pursuit of material in the form of rational basis and rationality, which is more in line with the law but do not have the rationality of penalty or necessity of rejection in the scope of crime behavior. For example, based on the principle of legality of substantive, which of course is a historical progress. But China is now in the past without the specification limits arbitrary justice to change the principle of legality, the rational judicial philosophy has not yet been established in china. In this case, too much emphasis on the principle of legality of substantive, not worrying." The front half part Jian Suo I agree with the upper half of words, but do not understand this paragraph of word parts. Because the legislative power limit without any contradiction and conflict and the restriction on judicial power; on the restriction of legislative power, judicial power is not to completely restricted as the premise; on the restriction of legislative power, does not mean to give up the restriction on judicial power; judicial power and legislative power is always. Therefore, the legislative power and judicial power constraints can and should be at the same time. So, in the form of side must the crime punishment legal principle at the same time, put forward the essence of the side, not worrying situation. The legal principle of crime and punishment if only the so-called formalism, but worrying.

In short, whether it is the formal interpretation theory, or the essence of the interpretation theory, at the same time the affirmative side of the principle of legality and the substantial side without the slightest error. In contrast, at the same time the affirmative side of the principle of legality and the substantial side, to limit the powers of the more comprehensive.

(two) principle of legality demands no law does not expressly provided, no law does not expressly provided. Therefore, does not belong to the criminal law provisions of the act, even though the law profit violation and serious, can not be punished. The problem that relates to the flaws of criminal law. To be sure, the flaws of criminal law is really impossible to fill through interpretation. In other words, even if a behavior should be punished, but as long as the law does not expressly provided, must draw conclusion of innocence. Whether it is formal interpretation and interpretation on substance, no difference at this point. The problem is, how to determine the existence of real vulnerabilities? fills up false can explain by analogy to explain away loopholes ? In the author's opinion, only by analogy method to fill the loophole is true. There is no doubt, the criminal law can't without flaws; certainly is the criminal law, this vulnerability can only be passed by a legislature amended. For example, criminal law makes no provision for public indecency, if think openly obscene behavior should be punished, we must increase the amendment to the criminal law crime of the criminal law; no compulsory indecency male behavior rules for compulsory indecency, if compulsory indecency men identified as acts of compulsory indecency, it must be "criminal law" article 237 in the "women" is amended as "others"; so.

However, in order to realize the justice of criminal law, we must in the premise of not go against the legal principles, as far as possible, reduce and avoid the loophole of criminal law. In other words, should be within the scope of legal form, will be punished behavior reasonable explanation of crime. In the opinion of the author, can be filled through the various analogy to explain outside of the interpretation of the "loopholes" are not the real vulnerabilities. Example: national staff requirements please provide the trustee to the third bribery cases are not. Explanation on the form that, this behavior does not accord with the constitutive elements of the crime of bribery, the holes to be filled by legislation, and the fact that the "criminal law amendment ( seven)" the provisions of the bribery crime by the influence to fill this hole.

But the author thinks, "the provisions of article 385 of the criminal law" the crime of accepting bribes, and not limited to claim to own soliciting a bribe, so, for national staff requirements to third trustees offering bribes, completely shall be directly identified as bribery crime. But, this does not belong to the expanding interpretation, as in violation of the will of the victim, the victim's property transferred to the third person also founded the theft. Moreover, "criminal law amendment ( seven)" the provisions of the bribery crime by the influence and national staff requirements to third trustees offer bribes, not just slightly different, but fundamentally different. Jian Wen example two: organization men not specific to the male sex for the behavior of the service, and of course belongs to the organization of prostitution of others, can not think of loopholes in criminal law, must make the same time because of the criminal law. Example three: "criminal law" article 247 to violence "to obtain testimony" act as crime. The problem is, to use force to the statement of the victim behavior, can apply to the rules? interpretation on form that, by filling the holes should be legislation. However, on one hand, this is no real vulnerabilities, can through expanding interpretation, interpretation as a witness, victim victim statement explained as the testimony of witnesses to solve. On the other hand, the judicial organ for the real case at present, according to the current criminal law, amendment to the criminal law can not wait until after the treatment. Example four: "criminal law" provisions of article 329 of the looting of state owned archives, but it did not specify the robbery of state owned archives, if on a robbery state-owned archives behavior not to ordinary crime of robbery, of course, can be identified as snatch state-owned archives. This does not mean that the robbery is equivalent to the robbery, but does not mean that the analogy to explain, but because rob State-owned Archives Act, fully meet the snatch state-owned archives elements, like murder in full compliance with the damage characteristics. In other words, in this kind of situation, not to say that rob contains a robbery, but that is not the lack of elements of robbery loot.

Formal interpretation theory of mind is always filled with a complete criminal law ideal,, used to think, as long as the criminal law made good, can deal with all cases with plain meaning interpretation, so his ideal, the penal code complete as the basis of realistic case. However, regardless of whether a perfect penal code, in implementing the rule of law of the times, the interpreter will only present criminal law as effective as dealing with the practical cases according to law.

(three) mentioning substantive interpretation, some people think is in on the behavior of social harmfulness of crime, thus violating the legal principle of crime and punishment. In fact, the essence of interpretation is substantive interpretation of criminal law elements, rather than the facts of the case are substantial judgment; if lacks the elements, or, if the criminal act is formed not for some elements, of course could not pass the essence of the interpretation will be recognized as.

Undeniable, logically, and forms of interpretation, the author of the first part is about the essence of the interpretation of article (three) idea seems easy to expand punishment. Because the elements are expressed as positive expression elements, the elements of the extended to explain the general will get adverse to human behavior conclusion. But, first, I must reiterate, is not conducive to the analogy to explain human behavior is forbidden by the principle of legality, but as a method of interpretation, amplified interpretation itself is not prohibited by the legal principle of crime and punishment. As to how the area classification is explained and expanding interpretation, is the eternal subject of criminal law. Jian Wu if not beyond the criminal terms may have meaning, if have the rationality and the necessity of punishment, even the defendant is not conducive to expanding interpretation conclusion can be adopted. On the other hand, expanding interpretation, plain meaning interpretation conclusions are not reasonable; in some occasions, not as restrictive interpretation will reach unreasonable. For example, if the "criminal law" in article 111 "intelligence" as the plain meaning interpretation, but not as restrictive interpretation, the conclusion is not reasonable. Therefore, the interpreter should not remain in the interpretation of the judgment, and should be judged on the interpretation method of analogy to explain away the conclusion is reasonable, appropriate. Second, expand the scope of punishment, not equal to violate the principle of legality. On the one hand, is a violation of the principle of legality, according to whether the analogical interpretation, if applicable after the specific content of law shall be determined ; as long as some behavior belongs to comply with the Constitution and the illegal act, be recognized as crimes would not go against the legal. On the other hand, the scope of punishment is not the more narrow the better, only enlarge the scope of punishment is undeserved, will violate the principle of legality. Thirdly, does not violate the principle of legality of interpretation, are not reasonable, appropriate explanations. Because the core of the principle of legality is to limit state power, safeguards the national freedom, who will explain the guilty, guilty to felony explanation for the misdemeanor, or anything that limits the scope of punishment, can not be in violation of the principle of legality. So, to murder as damage, will rob interpreted as innocence, also does not violate the principle of legality. Jian ¬ however, criminal law not only has the guarantee of freedom of the function, but also has the function of protecting legal interest. Only does not violate the principle of legality, but also protect the legal interpretation, is the accepted explanation. In other words, we must protect the legal interest in compliance with the principle of legality. As Luo Kexin ( C. Roxin) professor said: " correct interpretation, must always at the same time, classical Chinese and in accordance with the law for legal purposes, only one standard is not enough." Jian Jin conform to the criminal law of classical Chinese, means that the implementation of the criminal law's function to protect liberty; accords with the purpose of criminal law, means that the implementation method of criminal law protection of interests.

A specific provision or the practical case, often appear the guilty and innocent, a felony and misdemeanor argument, this is very normal phenomenon. In this regard, I would like to point out that the following two points:

First, the interpretation or judgment elements of the differences, debate parties should discuss the specific focus of controversy itself. For example, the Xu Ting behavior is identified as theft, relates to bank ATM cash who occupy, Xu Ting is because the machine failure in law or in fact holds the bank ATM machine in the cash, and the meaning of theft. Obviously, people with a different point of view should be specific level debate. Not discuss specific issues provisions and cases, only the abstract from whether violates the crime punishment legal principle, is the abuse of power, whether to destroy the rule of law is discussed, it is impossible to draw a reasonable conclusion. Moreover, the nursing homes, orphanages managers abandoned old, orphan identified as acts of crime of abandonment, need to have specific meaning of the abandonment crime law, refused to support the discussion. Also, in the so-called unit theft case, whether natural person established theft, relates to the fact induction and judgment method. In the debate, claims of innocence, crime light scholars should not easily accused guilty, guilty to heavy conclusion scholars violates the crime punishment legal principle.

The second, "every researcher's personal life destiny, his social status and his political position have come very naturally to go into their own experience." In other words, "in the humanities fields, a researcher to ask questions and hypothesis, certainly is not independent of his entire personality, so it is not independent of his life, his position in society." Jian Ying every interpreter's growth process, work experience, life experience, reading and so on, will determine its views on specific problems, this is not a simple explanation on the form and substance to explain differences, also is not a simple problem of whether to adhere to the principle of legality.

For example, the Supreme People's court, the Supreme People's Procuratorate in 2001 April 5 day "for production, several issues concerning the specific application of laws and the sale of fake and shoddy merchandise criminal case explanation" sixth stipulation: " medical institutions or individuals, knows or should know that is not consistent with the protection of human health and national standards, industry standards of medical equipment, medical and health material purchase, the use of health caused serious harm, on the human body, sales did not meet the criteria for conviction crime medical equipment." Professor Chen Xingliang pointed out: " this judicial interpretation, the purchase behavior for the expanding interpretation." Zhuan but he looks on the judicial interpretation is not opposed to judicial interpretation; the author has been denied. this distinction is hardly a formal interpretation and interpretation on substance difference, is not whether to adhere to the principle of legality, probably on the judicial interpretation of attitude.

For example, Professor Chen Xingliang believes that virtual property in criminal law, but also the property, theft of virtual property theft. On the other hand, Professor Chen Xingliang think, human behavior xiesifen, invade others entrusted stock trading accounts and tamper with the password, to sell cheaper in other accounts buy high, causing the loss of property of the behavior of others, not to set up the crime of intentional destruction of property. Zhuan Suo if carried on the comparative analysis of the above point of view, I am afraid also afford much food for thought. Professor Chen Xingliang repeatedly to Dr. Deng Zibin said: " expanded interpretation limit is a must have for the defendant." But generally it is certain, Professor Chen Xingliang made a further explanation of criminal law on property ( because professor Chen Xingliang think, the biggest feature of network society is immaterial. If so, the virtual property as property, is a kind of explanation of expanding ), but the criminal law on the destruction of the plain meaning interpretation even limit. Why, I'm afraid only professor Chen Xingliang he can answer. Perhaps many people will this reasoning: since the virtual property can be theft, will be destroyed; since the virtual property can be destroyed, the entrusted stock trading accounts in the property, also can. The author does not think Professor Chen Xingliang on this contradiction, also don't think Professor Chen Xingliang in the previous issue has taken substantial interpretation, in the latter issue has taken formal interpretation; I just want to explain, a scholar in the interpretation of constitution, in effect and is affected by many factors. So, every scholar in the interpretation of criminal law, also must be aware of what factors affect and restrict their use of interpretation and to explain the conclusion of adoption, and can not simply use "violates the crime punishment legal principle" against the claims, the view of the crime.

Three, the explanation of the essence of penalty range

Determine the punishment scope, is not only related with the principle of legality, but also related to the country's judicial basic criminal policy, traditional, criminal legislation guiding ideology, of course and the interpretation of criminal law about.

(a) which explain the expanded scope of punishment?

Formal interpretation researchers used to think, substantive theory expanded or easy to enlarge the scope of punishment. But I do not agree with this statement. Whether in Japan, or in the China, from ending point of view, can not think all forms of interpretation than substantive interpretation on a more limited range of punishment, in fact, explain conclusion two causes are not identical, and thus the existence of cross.

First, the vast majority of cases, formal interpretation and interpretation on substance reached the same conclusion.

Second, in some cases, formal interpretation will draw conclusions and does not constitute a crime, the essence of interpretation that constitute a crime conclusion; on the other cases, may be opposite. In a word, on the one hand, the facts of the case should be punished, and the need to expand through interpretation to criminal law provisions (such as the property of others occult) , substantive theory generally factors compliance and illegal surely constitute, and interpretation on form may. As mentioned earlier, is the most typical form of interpretation, Professor Ootani Mi on the representative elements must conceal the property of others has damaged objects compliance and illegal crime. On the other hand, the facts of the case is not worth to be punished, but behavior was with elements of the text description (such as smoking and to carry a small amount of narcotics transport) , substantive theory will be important document compliance and illegal negation, and interpretation on form will get affirmative. So, not all think, substantive theory than formal interpretation enlarges the scope of punishment. The same is true of japan. That is, some behaviors, formal interpretation on the claims of innocence, advocates of guilty substantive theory; on the other behavior, substantive theory advocates innocence, substantial interpretation theory. Example: about the hurt of meaning, substance to explain that, only by physiological human dysfunction is hurt; and interpretation on form professor Ootani Mi think, harm not only to human caused by physiological dysfunction including behavior, but also make the body shape occurred important change behavior; example two: people infected with the virus are made about the atrocities of negative answer, Professor Maeda Masahide, Professor Ootani Mi holds the affirmative answer; example three: illegal about the child can become the object of the crime of detention, Professor Maeda Masahide holds a negative answer (real freedom), Professor Ootani Mi holds the affirmative answer (may. Zhuan Wen

Thirdly, as mentioned before, logically, and forms of interpretation, the author of the first part is about the essence of the interpretation of article (three) propositions, seem to enlarge the scope of punishment; but on the substantive theory of article (two) proposals for substantial legality theory, and the essence of the interpretation support the principles side, which significantly limits the punishment.

In addition, there is a need to explain, in some cases, theory and substantive interpretation of formal interpretation may have concluded that innocent conclusion, but the reasons are not necessarily the same. On the same innocent cases, formal interpretation may be lack of the punishable illegality on the grounds that the innocent, and interpretation on substance is likely to lack of compliance elements on the grounds that the innocent.

(two) shall take all restrict punishment position, or shall take reasonable, necessary punishment position ? In other words, the punishment scope is more narrow as possible, or reasonable, appropriate for the good? Professor Maeda Masahide pointed out: "the reason penalty, because of the existence of all citizens. Not 'more limited penalty increases national interests', but must be the necessary minimum specifically, essence to explore necessary for the preservation of national interests of punishment. In this sense, the theory of interpretation of criminal law, it is important to the two evils and punishment are incorporated into the field of vision, is' worth punishment 'substantive judgment." Zhuan Wu professor Maeda Masahide against "as long as the form to determine the scope of punishment can be" approach, advocated "rational choice really worthy of punishment", "to the act of thinking form should be a crime is really worthy of punishment".Obviously, the essence of interpretation is not without limits the scope of punishment. But to be sure, Professor Maeda Masahide advocates the "limited punishment" to "appropriate punishment". Substance explain this is Professor Maeda Masahide's theory.

Linked to the legislative and judicial situation in China, the author further grounds to claim, the interpretation of the criminal law can not only highlight the limit the scope of punishment, and it should be emphasized that the scope of punishment rationality, validity ( if in the judicial level, of course the legal premise).

First, in the western countries, the criminal punishment (punishment a broad range of past simple violation of ethical behavior), the western countries before and after the 60 in the last century the thoughts of non - crime, mainly for simple violates the ethics behavior and part of no victim crime non crime. But 70 years later, is the main crime. Zhuan Jin compared with Japan, Germany and other countries criminal law, the criminal law of our country stipulates punishment scope is quite narrow. Therefore, our country should not blindly pursue non crime. In the criminal legislation has fully implemented the legislation style of non criminal, non criminal justice must not much space. In other words, in the criminal legislation has strictly limited the scope of punishment case, criminal justice should not be further limited the scope of punishment. Zhuan Ying

Second, in today's society depends more on the penalty than ever. In today's society, different values coexist, weaken the informal social control force, will inevitably produce tendency through penalty the perfect complement to maintain social order. With the complexity, scientific, high technicalization of social life, the life of people mainly rely on technology, fragile at the same time, the potential dangers of individual behaviors are also dramatically increased, people do not know what would happen disaster moment. In addition, rampant terrorist activities, terrorist activities once succeed, caused by the infringement of legal interest be unbearable to contemplate. Yang looks under this kind of background, to emphasize the limited punishment denied appropriate punishment is probably not appropriate.

Third, can not simply replace the scope of punishment for punishment quantity. Even if the interpretation on form and interpretation on substance in the penalty amount is the same, does not mean that the two of the range of punishment is the same. In the face of A, B, C, D, E five kinds of behaviors, formal interpretation theory claims that A, B, C punishment, D, B, C, D claims that penalty, E interpretation on substance, although the same amount of punishment, but punishment range. The scope of punishment, a punishment according to the origin to understand, grasp the different origin, to "appropriate punishment" in the "appropriate" understanding, grasp is not a.

In addition, appropriate penalties, including not only the punishment scope appropriateness, also includes the punishment degree of appropriateness. In a society ruled by law, should not appear on misdemeanor complete indulgence, lifelong punishment to felony applied situation. In other words, oppose to heavy punishment is not appropriate.

(three) to restrict punishment scope is equal to limit the power of state organs, rationality advocated the punishment scope is equal to indulge the power of state organs?

As mentioned before, the statutory form side to restrict judicial power, the substantial side is designed to limit the legislative power. Restriction of state power, is the core content and the requirements of the rule of law. These are no doubt.

The organs of state power comes from the people, the exercise of power must accord with the will of the people. China frequently in the criminal law amendment mode with crime, in today's society is not an expression of national. With a great crime, crime is on the increase, a sense of security national reduction, "safety or protection of people's demands", now through the media, more direct, more intense, more timely reflect to the legislature and the judiciary; criminal law countries on public protection has become a public service. Yang Shi so, people can not accept the state organ is not as. Between the narrow and limited, the punishment power of state organs punishment scope wide and connivance of state organs of power between and not equal.

Abuse of power in the abuse of power, not deliberately choose to explain the standpoint and method, in other words, as long as through the abuse of power to achieve the goal, abuse of power will not only choose interpretation on substance, rather than formal interpretation. As for the abuse of power will choose what the specific circumstances, one hand depends on the item ( in not worth of penalty against the interests of the law facts, of course will only choose the form of the interpretation, the interpretation on form and not absolute limit the scope of punishment); on the other hand, in case to speak, in the there is no statistical data, people with a different point of view will certainly result in different. Substantive theory often is concerned with explaining the phenomenon of abuse of power by form, so that formal interpretation is abuse of power by much; interpretation on form often concern is the substantive interpretation of the phenomenon of abuse of power, even explaining crime intentional abuse of power to avoid own experienced the phenomenon therefore, believes that the essence of interpretation is abuse of power use. Moreover, logically, and wait for the others to implement a penalty against the interests of the law after the behavior to abuse, criminal persecution, literal meaning of direct abuse of criminal law articles persecution practices, more simple, more quickly.

Theory four, substantive theory and crime

The essence of interpretation and explanation on the form to explain the elements in the form (or the constituent elements of a compliance judgment) aspects of the dispute, is of great significance. However, there are also some misunderstanding or misinterpretation.

(a) form of judgment and discretion

The usual argument Japanese criminal law scholars, compliance is the form of judgment, judging the types of elements, and the illegality is substantial judgment, individual judgment. Yang Rong Chinese scholar Professor Chen Xingliang pointed out: " principle of legality, first consider a behavior in the criminal law has no provisions, first is to see the constitution of a crime. In the 'three class' theory, whether an act constitutes a crime is to see whether it has elements of constitution of crime, which is actually a form of judgment, when a behavior is the essential ingredient, substantial judgment is placed on the illegality of judgment, if the bank does not have the essential ingredient for it will not be to the illegal stage. Therefore, 'three class' theory of crime on logical arrangement itself is made formal judgment before substantial judgment, impossible to reverse the judgement, this is caused by the' theory of the structure of three class specific 'theory."

In the three class system context, if only from the constitutions and the relation of illegality, the constituent elements of a compliance judgment known as the form of judgment, types of judgment, the judgment of illegality called substantial judgment, individual judgment, and in this sense form of judgment is better than substantive judgment, also be without rebuke. However, we can not therefore mistaken, compliance judgment is just a form of judgment elements. In other words, although the Japanese scholars emphasize judgment crime from the form to the substance, but this does not mean that the compliance judgment elements is the form of judgment.

First of all, the Japanese criminal law theory that elements are illegal type, since it is so, at least in the absence of legal cases, constitution is illegal existence basis, with elements of the act is illegal. Even though elements is a type of illegality and liability, also can come to this conclusion. For example, Professor Ootani Mi pointed out: "the constitutive behavior type is illegal and responsibility, so, with elements of the act, in principle with illegality and. Therefore, first of all, in violation of the scene, as long as is consistent with the elements of the act, it should be to the existence of ground for elimination of misfeasance of the negative method to determine the illegal. Secondly, in the responsibility of the scene, as long as is consistent with the elements of the act, it should be to the existence of impediment of responsibility of the negative method to determine responsibility." Yang Yao since illegal stratum judgement is negative, it means elements must provide positive according to law. So, in the interpretation of constitution, of course, must make with elements of the act is illegal, it is illegal to be punished. This does not mean that those who have the punishable illegality of behavior, must be explained to the elements to. Because the criminal law does not punish any violations, but only punishment with violations constitute elements of the.

Secondly, if the constituent elements of a compliance completely evolved into pure form of judgment, not only means that the constitution loses the function of presumption of illegality, and imply that the plain meaning interpretation of constitution can only lead to the criminal law theory, no practical significance. Because of this, the essence of constitution of judge in accordance with Japanese scholars without exception. For example, the Japanese criminal law the provisions of article 100: "in accordance with the law in order to make prisoners escape for the purpose, to provide instruments or other to escape behavior, less than three years." Accordingly, helping behavior constitutes aid escape escape. The problem is the escape behavior constitutes the aid escape? from classical Chinese perspective, abetted escape "is to make it easy to escape behavior" is still in doubt, but not only from the classical form to draw a negative. Object to the real interpretation of Professor Yamanaka Keiichi made it clear that "contains the instigation of escape". Moreover, damage to damage the artifacts in crime of meaning, Professor Ootani Mi think: "the behavior is ,...... The so-called damage, change is with certain materials as artifacts of its image or the loss, also make people in fact or feeling not in accordance with the original purpose of the use case, even if the loss of its intended purpose. As in other tableware pee, or for the purpose that will be hidden, as will sign off into the open space on the behavior, affixed to note in violation of "public election law," the notice on the behavior, is damaged." Yang Wu professor Yamanaka Keiichi Professor explanation and Ootani Mi explained on the destruction of the same. Yang ¬ is not difficult to see that, Professor Ootani Mi did not form interpretation of damage. Also, the Japanese criminal law 104th stipulation: " disappearing, forge or alter the relevant others criminal evidence, or use of forged, altered the evidence, and two years in servitude or two hundred thousand yuan." Act on the elements of a professor Sone Hiko explained: " disappearing, not limited to physical loss, but the evidence shows that prevent (such as hidden witness) reduce loss and make the value, the." Yang Jin professor Ootani Mi has come to the same conclusion. certainly, Professor Ootani Mi will hide the explanation for the disappearing evidence is a substantive interpretation. Lian looks

In our country, against interpretation on substance have not in the constituent elements of substantive judgment stage. For example, Professor Chen Xingliang think, male same-sex sexual transaction organization founded the organization prostitution crime ( I also agree with this conclusion). The reason is: "prostitution, in essence, its meaning is transaction referred to the heterosexual sex, in general. But in exceptional circumstances, the homosexual prostitution transaction contained in meaning, does not violate the basic meaning of the word." Lian Shi obviously, Professor Chen Xingliang on prostitution as a substantive interpretation, this interpretation is not made in law class, but to make in the constituent elements of a compliance class. Lian Rong

Once again, the elements of many standard elements. "Normative elements of judgment, is a judgment of value", not just a form of judgment.

Finally, if like Professor Ootani Mi, Professor Chen Xingliang argued, is to judge the elements only, substantial judgment shall, in illegal class then, will appear the following question: is the information class essence in illegal judgment of what? because in three class system, "illegal" title under study is the ground for elimination of misfeasance, Lian Yao illegal judgment only negative judgment, special not illegal elements ( illegal elements have been incorporated into the constitution. Since there is no means of judging, it is impossible to carry out illegal judgment, substantial judgment becomes an empty phrase, the outcome is bound to lead to will not be punished as a crime behavior. On the other hand, if the formal interpretation theory advocates substantial judgment on illegal class data is still so and the constituents of the relevant facts, the three class system, it evolved into a "formal elements -- illegality ( essential conditions and ground for elimination of misfeasance) -- liability". But I don't think this system is reasonable.

In other words, the illegal levels of elements to substantial judgment, rather than substantive judgment elements in the form class (of course not to violate the principle of legality is the premise). In the three class system, because the law is actually formed by a behavior consistent with the Constitution and the lack of ground for elimination of misfeasance two judgment, as long as the lack of ground for elimination of misfeasance is illegal, so, with elements of the act must have the essential illegitimacy. Because of this, the author thinks that the constitution has substantial content. Since the law ( responsibility) type three level system determines the elements must carry out substantive interpretation, since Japanese scholars on the elements of the essence, why the crime constitution is the form of known composition judgment, and illegality is substantial judgment? this is because illegal class judgment is a more substantial. The illegal class that super regulations of illegal resistance but reason, and in the constitution, may not exist beyond the law, the constituent elements of a compliance. Therefore, the author believed that, whether in the China or abroad, the elements of the interpretation must be substantive interpretation on under the principle of legality (unified is form of judgment and substantive judgment).

This still cannot avoid what is explained in the form, form of judgment problem. If the formal interpretation means "only in the possible semantic (maximum range, and semantic core and edge of semantic interpretation ) in" Lian Wen, then, illegal to legal obstructed judgment, judgment of responsibility, is also a form of judgment and discretion of unity, not just the essence. Because it is not justifiable defense and emergency hedge in accordance with the provisions of the criminal law, do not judge the intentional, negligence and liability age, responsibility in accordance with the provisions of the criminal law, will inevitably lead to judge the willful, is not necessarily consistent with the principle of legality.

Professor Chen Xingliang pointed out: " judgment form of judgment and substantial relationship, first as a form of judgment, then can be further substantial judgment, judge can not replace the substantive judgment and interpretation, that exist as the essence. The first substantive judgment, subsequent can no longer as a form of judgment, judge must be substantial judgment replaced, substantial judgment of the crime can not play." If these words are only describe the relationship with judgment and illegal judgment elements, it applies the above discussion. If it is just the constituent elements of a compliance judgment, then the number is not fair. As mentioned above, the constituent elements of a compliance stage, not only the form of judgment, but must have substantial judgment. If in the constituent elements of a compliance phase can form after the judgment of substantive judgment, so, of course also can be substantial judgment after the form of judgment. That interpretation on substance only substantial judgment, is inconsistent with the facts. Even in the era of analogical interpretation, interpreters to be punished cases, but also to find the most similar provisions, to determine whether the act and

A provision which is most similar to ; in the legal principle of crime and punishment era, no one will think, as long as the behavior has may punish the nature, can be directly conviction. Because even if the first substantive judgment, also must be "belonging to a law", the "ownership" of course refers to the act in accordance with law stipulates the elements.

To explain his explanation is more difficult than others. In China, even strongly opposed the substantive theory scholars, also (involuntarily) substantive interpretation and analogy. For example, Dr. Deng Zibin for the crime of intentional destruction of property pointed out: "in the criminal law 'destroyed', from the physical, is to make the property of serious deformation, lost its integrity...... Or make a loss of property, loss, for example, when the owner's face, others will store the water fell on the ground; or make property appearance....... However, when we use the 'deformed', 'lose their integrity', 'lost', 'loss',' appearance 'destroyed' damaged 'explanation, be careful, some deformation is not destroyed, such as ironing clothes creased; something in the loss of integrity or the appearance of damage also do not constitute damage, such as monetary fouling generally do not affect their......." Lian ¬ but, why shape

After explanation of the destruction, and that "the ironing clothes wrinkle, make" money "fouling" behavior does not constitute damage? answer may be, this kind of behavior "generally do not affect their". This is the essence of thinking and interpretation, are also described, explain the conclusion forms may be not worth the punishment behavior included in the constitution. Not only that, Dr. Deng Zibin also said: "the people ring from the deck into the sea, the others were fed bird from the cage...... The two example is controversial, because the ring and the birds in the world, said it was' destroyed ', apparently from the public understanding of' destroyed 'two words, but also greatly beyond the' destroy 'two words' possible meaning'. I would rather this explanation for the theft, and put the bird just to the theft of the action, do not affect the establishment of the crime of theft in advance." Lian Jin but, "the others

Ring from the deck into the sea "is the property of others" loss ", but also affect the use, but Deng Dr. Zi Bin to" stay away from the public understanding of 'destroyed' two words, but also greatly beyond the 'destroy' two words' possible meaning '"on the grounds, denying belongs to destroy. However, I'm afraid the public no one put "others will store water fell to the ground," said to destroy, but I do not know why Dr. Deng Zibin calls the latter destroyed. Moreover, the "others will ring from the deck into the sea", "the others were fed bird from the cage out" the two identified as acts of theft, probably belonging to analogical interpretation. Because the objective requires the transfer of possession, the subjective requirements have the purpose of illegal possession, even though the latter may not be part of scholars, but there will be no transfer possession of the identified as acts of theft, I'm afraid not endorsed the. However, the two act is not the transfer of possession, then others will ring directly into the sea or, after the others fed birds from the cage out or, actors did not occupy the ring with the birds. If so, elements of the above two kinds of behavior of the crime of theft is lack of conformity; be recognized as theft is not considered a la.

In the form of judgment and substantial judgment on the issue, to discuss the necessity and status of the concept of illegal punishment. Professor Ootani Mi pointed out: " in constitution interpretation, should determine the necessary in punishment or the rationality of previous general with commonly, ability is understood from the view point of form....... By necessity, the rationality of punishment as the base of the nature of judgment, as long as after identifying with constitutive elements of illegality and responsibility, in the stage of individual, the judgment is enough." Lian Ying in other words, Professor Ootani Mi think, forms of thinking only in the interpretation of the constituent elements, whether it is worthwhile to punish a behavior in essence, only in the illegality and liability stage. However, whether this is true remains in doubt.

First, as mentioned earlier, all illegal elements are elements in the class is not active, illegality illegality judgment, only a judge has no ground for elimination of misfeasance. Therefore, the so-called substantive judgment only in illegal sex is not true. Moreover, as mentioned earlier, Professor Ootani Mi is in fact a substantive interpretation of the constitution.

Secondly, it is because of the illegal elements, illegality field are not independent from the elements outside of the so, Professor Ootani Mi had to take the penalty law concept. For example, in Japan, is the theft of a newspaper like case, substantive theory denies the elements of theft, compliance; and interpretation on form the behavior consistent with the elements of theft, just in the illegal stage to illegal punishment on the grounds that the lack of. But, in the elements, and no judgment elements illegal without the penalty, how could the behavior should be punished for judgment? ending is, outside of the illegal search for punishment or the elements according to, or to meet the elements of fact again. The former practice will inevitably lead to the punishable illegality judgment arbitrariness, so Ootani Mi took the latter approach: judgment "illegal objects is equivalent to (can also be translated as should to -- my word) illegal elements of the fact judgment, illegal

Must be the punishable illegality. Therefore, firstly, the order of law to the criminal laws and regulations, including reference to the judgment of illegality has no ; second, to the code of conduct for the protection of the interests of the law and social ethics is the criminal law as the reference of the illegal judgment can be fined not placed regardless of the quality and quantity of illegal." Quan looks but look in the author, this judgment is put forward by Professor Ootani Mi, there are at least two aspects: hand, advocates in fact illegal class re equivalent to the illegal elements of the judge, criminal theory system is not consistent with the advocate. As stated earlier, Professor Ootani Mi think, illegal levels of judgement is negative judgment, and equivalent to the illegal elements of the facts are facts of the constitutive elements, it is not possible in the illegal illegal elements in fact again positive judgment. On the other hand, Professor Ootani Mi proposed the punishable illegality judgment standard, is differ from man to man, with considerable arbitrariness of the judge.

The same problem also exists in China's criminal law theory. For not worth punished behavior, through the explanation of the essence that is not in conformity with the constitution or form of judgment the elements, and then to "criminal law" article 13 but according to acquitted? The author taken before a. For example, the postal staff private buildings important content of a letter not letter, did not cause serious consequences of behavior, that interpretation on substance, can only be punished the law profit violation behavior interpreted as consistent with illegal elements of the act, therefore, this behavior is inconsistent with the "criminal law" the provisions of article 253 of the crime components; and the interpretation on form will think that the "criminal law" article 253rd of the constitution of a crime, but by direct reference to article 13 but acquitted. However, lawmakers set specific elements of crime, is the behavior should be punished according to the. In turn, the interpreter, applicable in the interpretation and application of criminal law provisions of the constitution, must also understand the essence, which can only be punished acts Interpretation Act accordingwithconstitutive requirements. Therefore, for not worth punished behavior, should be based on the behavior does not accord with the constitutive requirements for acquittal, rather than directly to the "criminal law" article 13 according to the proviso for acquittal. Although the conclusions, but, first, formal interpretation is more arbitrary. Because the essence of the interpretation is to determine the elements, and the form of explanation is not according to the data of specific conclusion. Second, compared with formal interpretation, interpretation of earlier draw a conclusion to the defendant's innocence.

( Two) three class and two class

Dr. Deng Zibin for the author claims that the system of criminal theory points out: "Mr. Zhang Mingkai will 'three class' or' two class', it is' real 'Constitution judgment part, such efforts, will be in conformity with the constitution of crime in the form of reduced to a minimum, without taking into account this form symbol for limiting the crime judgment, and this meaning, even if is symbolic, should also be retained and. Without the skin, hair stand? form without content, there is No. So, from the direction, to Mr. Zhang Mingkai's theory, and the initial stage of the rule of law is not like." Quan Shi professor Zhou Guangquan criticized the system of criminal theory also pointed out: " theory in Professor Zhang Mingkai's system, objective elements discussed substantive illegality, the subjective elements of this liability, constitutive requirements compliance by concept in theoretical system." Quan Rong

First of all, the author advocates of the system, and not simply with the objective elements and illegal two class, not the so-called will be the first guard and second with no access, simplified judgment procedure, which is mainly for the illegal presumption to maintain the objectively constitutive requirements, but still distinguish objective ( illegal) constituent elements of a compliance and deterrent. The basic idea of the author is, since the elements are illegal type, you should know what is illegal elements stage. The two class system, never deny conformity concept elements, not the concept of neglecting the systematic status in criminal theory. As long as my "criminal law" at the third edition of the directory, you will find there is objective ( illegal elements) and subjective (liability) , objective elements and subjective elements of conformity conformity. Therefore, it is difficult to accept the critics call "will be in conformity with the constitution of crime form meaning is reduced to the minimum", "constitution conformity concept in theoretical system ignored" conclusion.

Secondly, the difference between the three class and two class system, and the difference is not the form of crime theory and the essence theory of crime. Proposition three class system of scholars, will still carry out substantive interpretation of the constitution; conversely, claims two class system have elements of form of composition.

Once again, the difference can not form about three class and two class. Criminal theory system of Professor Ootani Mi is taken: confkrmity of constitutive elements ( including objective elements and subjective elements) -- the crime obstructed (into the ground for elimination of misfeasance and impediment of responsibility); Quan Suo professor Maeda Masahide the crime theory system: objective elements -- subjective elements -- ground for elimination of illegality -- impediment of responsibility to take crime; Quan Yao "Professor Hirano Ryuichi in the" criminal law of the system is: the elements of the line -- ground for elimination of misfeasance -- Liability -- responsibility resistance. Quan Wen in the author's opinion, there is no essential difference between these systems, only the form change of three class system.

In Germany, Japan, usually called the two class system is the recognition of negative elements theory. The difference between this two class system and the three class is not the essence and form. "Generally speaking, the constituent elements of a compliance judgment, whether conforms to the penalty regulations the behavior type judgment, is temporarily ( behavior, ensure what interests) consider the specific circumstances of the so-called limited leave vision of judgment. This kind of judgement, and illegal (obstructed) judgment that, taking into account all the circumstances of the specific benefit measure for the content view, from the overall law and order for specific, non type judgment, has the nature of. Under the general understanding, 'kill mosquitoes' and' justifiable homicide 'between the value of existence difference, in the criminal theory system is reflected. The former is not against the law, had not in conformity with the constitution, although the latter is consistent with the elements of the law profit violation behavior, but the obstructing illegality. According to the negative elements of the theory, it is not in accord with a legal act, the system will not be distinguished. However, the negative elements of the theory is not without distinction between law against illegal acts and interests behavior. However, from no matter what kind of behavior is not illegal behavior ( legitimate act) point of view, they belong to the same category, and that is not so great." Quan Wu in other words, in the three class system, "kill the mosquito" and "self-defense killing" in the constitutive requirements are different: the former stage was not in conformity with the constitution, therefore not illegal; though the latter accords with the constitution, but hindered. In the two class system, "kill the mosquito" and "justifiable homicide" are not in conformity with the elements of the act.

Three class and two class the main difference lies in whether the illegal type said thoroughly and how to deal with cases like imaginary defense. For example, according to the three class system, elements are illegal type, but, if has the ground for elimination of illegality, the constitution is not illegal type. Basic views of the two class system is, since the elements are illegal type, then, the constituent elements of a compliance judgment and the existence of ground for elimination of illegality judgment is the same judge properties. In other words, the constituent elements of a compliance and there is no ground for elimination of illegality, which belongs to the same level of evaluation of criminal law, therefore, the constituent elements of a compliance judgment, is only a part of illegality judgment; so, there is ground for elimination of illegality became negative elements. In other words, that behavior is illegal, must be sure the constituent elements of a compliance, and no ground for elimination of misfeasance. Moreover, the three class system is the logical conclusion, imaginary defense is intentional crime ( because the intent is to meet the requirements of a known fact and accept, the justifiable defense has deliberately, constitute elements of the imaginary defense is no exception) , ending, or admit this unreasonable conclusion, Quan Jin or defense with the constitution deliberately have to admit hypothetical premise, that imaginary defense has only negligence and through other means. Quan Ying two class system can overcome the three class system is difficult to solve the error of cognition of legitimate grounds (permissive elements error). "Because of the wrong articles constitute elements directly applicable to permissive elements mistakes are not a gorgeous decoration, but the functional system of criminal law with the principle of equality and the further specific mature results." Duan looks

The author claims that the system integration of Germany and Japan, is the three class system and the two class system (reprint). In other words, the author claims that the system although the form is different from the three class system of Germany and Japan, but no real difference and three class system; I not directly adopt the negative elements of expression, but for many the conclusion (such as self-defense does not conform to the illegal elements, imaginary defense did not intentionally the etc.), and the negative elements of the constitution theory.

( The three constitutive elements of crime) and open elements

The Open Constitution of crime, is refers to the constitution only describes some illegal elements, other illegal elements need to be supplemented in the illegal sex situation. Early views will not really not as a crime and negligent crime constitution as a case. Because the offense of non typical omission in what people have the obligation to criminal law does not provide ; negligent crime, criminal laws and regulations are generally described the law profit violation results, duty of care required to judge the law. The Open Constitution of crime concept has been most people deny : first, from the abstract level, if must open constitution of crime, means of illegal presumption to deny elements function, the elements of the form to. In other words, since the constitution has the function of presumption of law, it must be closed. Duan Shi secondly, from the specific perspective, the Open Constitution of crime theory, in fact is the need to add elements from the elements to illegal to make illegal elements, specifically, can be excluded from the intentional understanding objects. For example, the Open Constitution of crime theory guarantee factor, filling in the illegal sex so, not the elements of the guarantor and the duty of care, but the special element of illegality. The intent is to recognize the essential fact and accept, so, when the behavior of people mistakenly think falling into the water is other people's children, the Open Constitution of crime theory, behavior person still has deliberately, but did not recognize the illegality; but, for illegal words, so long as has the possibility of knowledge can be, without the need of reality, it will lead to improper enlarge the scope of punishment, thus not. So, we can say that, there is only open penal code, there is no open elements.

Dr. Deng Zibin pointed out: " constitute about open elements of system status, scholars had. 'open theory' is the key to it 'in the constitution of crime in addition to looking for positive law foundation', so, generally use it will mean that the breakthrough of legality." 

The author thinks, this is a misunderstanding and unreasonable. First, regardless of whether or not to admit the Open Constitution of crime concept, will believe that criminal law provisions do not exhaustively all the provisions of criminal elements, so that the criminal law does not expressly provide the added element (such as requirements larceny theft is others "occupation" of the property ), difference is the elements within the add the illegality, or the elements outside of class. If the elements of criminal law does not expressly added to the constitution to ( has not the true sense of the Open Constitution of crime theory, just admit the unwritten constitution. ), means to restrict punishment scope will not violate the legal principle of crime and punishment. Also, adding more, constitute elements of the epitaxial narrower, more favorable to the defendant, there is absolutely no "universal application" will break the crime punishment legal principle problem. If one really need to add elements of the objective elements, and the objective elements added to the illegality of second class, make it become illegal elements specialized ( truly open crime constitution theory ), the elements will not be intentional understanding object, mainly is the breach of duty. Due to the violation of the principle of responsibility end will expand the scope of punishment, in this sense, also can say violates the principle of legality. Second, whether to admit the Open Constitution of crime concept and interpretation on form and interpretation on substance not linked. For example, Professor Ootani Mi and Professor Maeda Masahide have acknowledged the Open Constitution of crime concept.

Professor Chen Xingliang will also open the crime constitution theory and substantive theory together, Duan Wen advocate Crime -- guilt -- crime amount theory system. "Crime is crime of ontology elements in the premise, that the number of elements of the law profit violation degree." "The elements of amount is not included in the crime, in addition to elements of the crime amount is not only objective factors but also the subjective factors, another important reason: crime elements is the behavior of the object of cognition, judgment and for intentional crime or crime negligence has important. If the elements of amount as a crime elements, if people have no understanding of behavior is no crime intentionally and belongs to criminal negligence, thereby making the guilt of judgment in the form of confusion." According to the viewpoint of Professor Chen Xingliang, the establishment of the crime of theft, does not need the person recognizes his theft is a large amount of property, as long as the theft of large amount, steal intent, on the establishment of the crime of theft. Therefore, the beggar stole a bed broken cotton as scrap sold, but cotton in possession of 5000 million in cash, but also the establishment of theft. Similarly, to set up a serious crime, does not require the person recognizes basic facts if the case is serious.

Obviously, Professor Chen Xingliang will expressly stipulated in the criminal law, such as large amount of serious crime in the crime elements outside the body, making the illegal elements specialized or elements of liability, causes originally belonging to the need to recognize elements become elements need not know, than the open constitution theory go beyond ( professor Chen Xingliang and not criminal law does not expressly, but in fact the larger amount, if the circumstances are serious as elements of amount; if the law does not expressly provided with larger amount, if the circumstances are serious, is a kind of substantive interpretation). Because the Open Constitution of crime theory, some of the elements of the criminal law does not expressly provided only supplement for illegal elements specialized, the elements are not intentional understanding object; while professor Chen Xingliang all the criminal law crime quantity factor independent of crime elements, so that it is no longer the intentional understanding. This view, of course, will be considered in violation of the principle of responsibility, Duan ¬ and also expanded the scope of punishment. For example, Professor Chen Xingliang pointed out: " unlawful assembly, parade, demonstration crime elements is refuses to obey an order to dismiss, serious damage to society. So, set up this crime does not need people recognize that the relevant departments have issued a dissolution order, but I can not agree to such a conclusion.

Five, the essence of interpretation and interpretation of criminal law philosophy

The essence of interpretation and interpretation on form battle also showed the concept of the dispute of criminal law interpretation. Although there are a commonplace talk of an old scholar, but I still have to make some response forms of interpretation.

(a) inversion and the traditional syllogism syllogism

Form an impression on explaining to people is, forms of interpretation of the constitution must, only in accordance with the syllogistic reasoning form conclusions, but not to produce a temporary conclusion. But in my opinion, it is impossible.

"The concept of law as the real justice final and eternal form, the people in the world is neither thorough understanding has not fully realized, however, all human legislation behavior with that idea as the orientation, the magnificent scene law idea never abandoned people." In order to make the criminal justice written into words, criminal legislation must be justice and possible future life fact corresponding. Because the penal code is just words, so, the judge must always pursue the legal truth in the pursuit of justice, conscience explained the legal text. In the brain a blank situation, rely on access to "Xinhua Dictionary", "modern Chinese Dictionary", "dictionary" and other books "explain" legal text approach, totally impracticable. Even by reviewing these books obtained the reasonable conclusion, is "chance", is a "coincidence".

Pang Deyu 1908 years in the "Harvard Law Review" published an article entitled "jurisprudence" mechanical paper. "He said general jurists took law as a special logic of scientific method, they thought the case as long as the existing law as the premise, with the current facts as the minor premise, we can deduce a conclusion of the unchangeable. So the law can be bigger than a grinding Rice noodles machine, as long as the grain from the side not to fill in, the Rice noodles will wear out from the other side. Justice is the driver of the workers, there is no chance. But the law is a deal with the social life science. The social life needs at any time change and expansion, so the major premise is also necessary amendments. The written law and in fact law is different, and we should pay attention to is the fact that the law. Jurisprudence has two kinds, one is specially heavy abstract principle regardless of practical effect, is a focus on law in essence to the social life of contribution. The former is the jurisprudence of mechanization, the latter is the jurisprudence of personnel; the former is nothing false Miao, is not practical, the latter is to stand on solid ground, an antidote against the disease; the pseudo science, because it is shoot at random, the latter is the real science, because pay attention to the interests of the." The essence of criminal law is the form of hermeneutics, it is the interpretation of criminal law mechanization.

The reasoning process of conviction is not a standard syllogism. The so-called "legal syllogism (juristischer Syllogismus) can only describe the applicable law (simple) basic. It is not computationally ('logic') reliable arbitration." Ye Shi in today's society, could not ask the judge handling the case like a vending machine. On the contrary, in a conviction, often the first (temporary) conclusion, after finding the precondition, and the premise to make the so-called inverted (syllogism.

Syllogism inversion does not violate the principle of legality. In particular, lawyers or judges face the case, even if the first temporary draw conclusions (guilty is a hypothesis ), and criminal law provisions for application, and the provisions of the facts of the case and the provisions of the criminal law of elements corresponding to crime in law, is also fully consistent with the original. This is because: "syllogism, the major premise and the minor premise is often not as fixed factors, but people need to seriously explore, discover. In the process of exploring, jurists of finding appropriate rules from the facts, circumstances and then back to the case to test the consistency." "In the search process, often from the answer of jurists. This is the reasoning of the inversion." "In practice, once the facts are confirmed, the applicable law rules are often almost automatically." "When the facts and legal factors of uncertainty, the judge often from his intuition that starting a fair solution, only to the judicial decision form the drafting stage using syllogistic reasoning. We can call the inverted syllogism, 'up' or 'reverse return type'. The judge will use its premise of choosing freedom, in order to produce can be proved to have been fixed conclusion syllogism." Ye Rong in other words, "the judge first intuition to find the reason, logic and form of this result. This in itself is a kind of psychological phenomenon, is not surprising. Law and order is intended to promote and judges all targets through the occupation activity is very familiar, may have become a part of their nature. He found a rational results successfully, and no prior to his show that all the arguments, these arguments by deductive reasoning, the results give the reason or make the legalization." For example, just as everyone knows the Xu Ting case, lawyers and judges after know the facts of the case, to rely on their own intuition possible after temporary training that the acts constitute the crime of theft conclusion ( or hypothesis), and then demonstrate the facts of the case and steal compliance constitute elements of the crime. Even in such a phenomenon: jurists and judges in criminal law provisions to find suitable before, had a hunch that Xu Ting behavior certainly constitute a crime, the crime constitute what, shall be related to the law of the constitution to explore, to find, and thus constitute the facts of the case and the specific elements of crime. These practices are very normal, does not violate the principle of legality. Of course, if in ascertaining the facts, to draw conclusions ( guilty or assumed ), was not looking for criminal law to be applicable provision, but still conviction, is in violation of the statutory crime. Similarly, if in order to maintain the guilty conclusion, and misinterpret the meaning or distort the facts for the law, but also violates the crime punishment legal principle.

Again, in order to find the true meaning of life from the fact in law, the judge must correctly deal with the previous understanding. "Relative to the referee's meaning, the judge has previously judged with previously understood in the case. The judge has the judgment or understanding, do not need to blame, because all understanding is from a previous understanding, but we must put it -- this is not the judges the -- open, reflection, into the argument, and ready to be modified." Ye Yao in short, when the interpreter to the guilty conclusion, but can not find the premise conclusion can only be guilty, innocent treatment.

(two) the norm of criminal law and the facts of the case

Formal interpretation on another impression that gives a person is, the Constitution can only form of interpretation, therefore, not because of the facts of the case to explain the effect of elements. But in my view, this is not possible.

The criminal law is the justice in words. But, living just need to discover from living in social life; the real law meaning not just hidden in the law text, but also hidden in the specific facts of life. "Law and fact coexists, the law is not in fact occur before. On legal facts without words, it is ridiculous! " Ye Wen hand of justice, any kind of interpretation, are relative to the specific time, specific life fact, fact of life change always explain new requirements. "In the face of the concrete case, never give up personal feeling just living voice; the voice can never be excluded." Open Ye Wu interpretation should face the legal text, know the facts of life will continue to fill the legal meaning, so that the law has the vitality. On the other hand, "specification must enter into a relationship with the facts of life, it must meet the things. This is what we call the 'interpretation' -- explore the normative legal significance. However, this is not like the traditional methodology of law said, only hidden in the law, hidden in the abstract and the legal concept of broad sense empty, on the contrary, in order to seek the significance, we must go back to some intuitive things, back to the specific facts of life in the. No, not to judge the facts of life in the 'nature', 'is simply unable to explore the meaning of law'. Therefore, 'law' is not fixed things, it changes with the facts of life -- though the legal text is always the same, as life itself and change." Ye ¬

In fact, "a term usually is the significance of the gradually development, formed in the emergence of the truth. Therefore, when a view is a word within the meaning of things, it seemed to be come very naturally accommodated. The meaning of words will gradually stretch, gradually expanded, until the people according to the nature of the thing itself will be the term as the name of the facts, various concepts are included." For example, 1997 revised criminal law, at the time of the "company law" does not provide the shareholders may set up a company, "criminal law" article 272nd of the embezzlement of company, does not seem to contain a human of company. But 2005 revised the "company law", the shareholder may set up a company, now, we should admit that "criminal law" article 272nd of the company includes a company ( company the same word, but its extension in the change). Moreover, the 1997 revision of the penal code, the cases of virtual property theft is very rare, almost no virtual property will be identified as "property" ; however, with the popularization of the network and the users of the virtual property value, it is "possible" (not necessarily) the virtual property is identified as "property" (a word property the same, but its meaning is changing. In fact, do not contact the specific facts of the case of the so-called form of interpretation of the constitution is not of any significance. We haven't seen someone "criminal law" the provisions of article 102 of the crime of treason to write a paper, because there is no facts of the case, there is no need to explain the problem. Even if someone has written papers, it is of no significance. Similarly, if the interpretation of constitution does not contact the facts of the case, can make "means that the seller to sell", "family members refer to family members living together", "forgotten things is all forgotten things", "crime of affray is gathered people fight", not practical interpretation. On the contrary, on the crime of larceny, fraud, corruption and bribery paper blots out the sky, this is because the relevant facts of the case too much, and thus needs to explain the problem is more. Not only that, the specific cases is the greatest driving force forced interpretation are re interpretation of the law.

In short, "a legal philosophy for life fact must be open, it must be real, concrete and positive, in order to facilitate the formation of the concept of; on the other hand the foreseeable fact of life will be carried out in typical construction and form a legal concept oriented." Specifically, the judge must connect the norms of criminal law should be decided, specific cases and crime legal punishment prescribed elements, upgraded conditions; norms of criminal law and the facts of the case two is the judge thinking limits; judge from the case to the specification, and from the specification to the case, carried on the comparison to the two, analysis. The facts of the case, to the criminal law may apply as a guide to analyze ; conversely, for the criminal law norms, type specific case or cases to explain things in ; criminal law and case comparison is the essence, the purpose of specification, it is at this point, the formation of elements and case the facts. That is to say, on one hand we have the facts of the case to the criminal law closer, on the other hand to the norms of criminal law to the facts of the case closer. So, in the criminal law has not stipulated the unit can become the crime of theft cases, cases will be summed up as "unit theft", and denied the natural person which identified as theft, is obviously inappropriate. This kind of practice is not in fact to standardize closer, but the fact is pulled to does not exist norms, pulled to the interpreter in the eyes of the "standard".

( Three) the legal questions and the defendant

Formal interpretation advocates, expand the limits of interpretation can only be beneficial to the defendant in the law, when in doubt, must be made in favor of the defendant's interpretation. For example, Dr. Deng Zibin suggested: " various explanations are allowed, but eventually have to follow a principle of interpretation: help." Also think Professor Ootani Mi under paragraph support his viewpoint: " about people in favor of the defendant's interpretation, because it does not restrict the principle of a legally prescribed punishment, therefore, the law as a general principle is also explained." Imperial Shi

First of all, in the opinion of the author, Dr. Deng Zibin may have misunderstood the view of Professor Ootani Mi. Professor Ootani Mi was speaking on "the analogy to explain the license" title. In fact, Professor Ootani Mi is not to say that the interpretation of the law in question will be defendant as the general principles of legal principle of crime in law, but that allows the analogy interpretation in favor of the defendant. Some views of Professor Ootani Mi cited earlier, will make this point clear. Another caveat is that, even if some people think is in doubt, the principles of "having 'retention' substantive law meaning", imperial Rong also does not mean that made in favor of the defendant must be interpreted when the law when in doubt, just means the evidence rule will apply to affect substantive law. Imperial and for example, a and B, two people in each other without the knowledge, at the same time shooting at C, only one bullet hit the C of the heart, leading to C death, but cannot pinpoint the bullet issued by who. According to the doubts in favor of the defendant's evidence law, neither identified a cause C's death, also cannot recognize B behavior caused by death. Application of this rule, of course, affect the application of substantive law. For a and B, were only identified as attempted murder.

Secondly, doubt is beneficial to defendants principle from 19 century Germany, imperial Yao it is just the law of criminal procedure of the rules of evidence, this point in Germany, Japan and Anglo American law is not what the dispute. For example, Luo Kexin (C. Roxin) professor pointed out: "the principle of the crime suspect only light (which is in doubt, is conducive to the defendant's principles -- cited note) is not applicable to legal questions. Case (BGHSt14, 73) think 'REO principle that only matters of fact, but not applicable to legal interpretation. Therefore, when the legal issues of dispute, in accordance with the principles of legal interpretation in general with the adverse decision, the court should also be from the view." Imperial Wen

Indeed, Chinese different from germany. Even so, I also do not agree with different conditions on the grounds, the defendant is in doubt, the principle on legal questions of clarification. Because any legal provisions are likely to doubt; even had no doubt, in some specific cases, there will also be made to the interests of a party doubt; if a question is made in favor of the defendant's criminal law interpretation, it will become a waste paper paper; if a doubt must be made in favor of the defendant's interpretation, criminal law theory need not arguing, as long as good at asking questions and know what to. In addition, if the interpretation of criminal law is conducive to the defendant, will inevitably lead to the conviction that chaos, can be used separately according to the specific circumstances of the case completely different or even contrary theory. Once again, will be conducive to the defendant as the interpretation of criminal law principle, obviously not in the form of interpretation of constitution, but to the constitution interpretation in favor of the defendant, is this not a substantive interpretation!

Finally, in fact, in law when in doubt, to be made in favor of the defendant's interpretation is not possible. For example, "trafficking" is limited to the purchase and sold in criminal law, this is a question. In the face of behavior betrayed the ascend 500 grams of heroin case, I'm afraid I can't draw a conclusion to the defendant's innocence. Again, the facts are clear in one case, has robbed and robbery dispute, can not but consider the other according to the determination of seizing, in favor of the defendant is identified as the robbery. Even if it is against the essence of the interpretation of scholars, often that the defendant is not conducive to the conclusion. For example, Professor Chen Xingliang in the interpretation of "criminal law" article 341 "sell" pointed out: "here refers to sell, sell and profit for the purpose of processing and utilization behavior." Imperial Wu this explanation at least is expanded to explain to the defendant, obvious disadvantage. Some people may think that this explanation, Professor Chen Xingliang is the plain meaning interpretation. But, Professor Chen Xingliang in the interpretation of the sale of article 344 said: "here refers to sell, sell." Imperial ¬ will sell interpretation to sell, can not become a restrictive interpretation, only plain meaning interpretation; so that the sale, including for-profit utilization behavior, it at least is expanding interpretation, is clearly not conducive to the defendant.

Abstract: literal interpretation to the constitutional requirements of a crime is not enough, the governingprinciple of legal interest protectionshould be applied to make the illegality and the culpability of an act de-scribed in criminal law worthy of punishment; with the precondition of abiding by the principle of "nullum cri-men sine lege, nulla poena sine lege", an amplified interpretation can be accepted to ensure the validity ofpunishment. An Interpretaion should not be separated from the facts; an interpretation should not be made un-der the principle of "pro defendente at unsettled points" when the stipulation is obscure. The principle of es-sential interpretation, defending both the formal and the essential aspects of the principle of "nullum crimensine lege, nulla poena sine lege", is not only good for the certainty of a reasonable range of punishment, butfor the fulfillment of the function of the constitutional requirements

Notes.

1      Bayashi Yamada: "the criminal law theory of" first, Taiwan Sanmin Publishing House 1978 edition, page sixth.

② see Zhang Mingkai: "the basic position of" criminal law Chinese legal press, 2002 edition, 137th pages.

To see Zhang Mingkai: "to the illegal and the responsibility as the backbone to construct the system of criminal theory", "modern law" set in 2009 sixth, forty-first pages.

The traditional view that if like, think social harmfulness is unified, objective harm and subjective evil so, can also be said to constitute elements of the interpretation, must make with elements of the line

As the social harmfulness is punishable by penalty degree. If you think the constitution only illegal type, the elements of the interpretation, we must make the act accordingwithconstitutive requirements has illegality should be punished.

The Supreme People's Procuratorate on August 6, 1999 "directly accepted by the people's procuratorates shall place the case on file for investigation cases on file standards (for Trial Implementation)".

Deng Zibin: the "critical" view China substantive criminal law, Law Press, 2009 edition, page 187th.

The "Russian Federal Criminal Code", translated by Zhao Lu, Chinese People's Public Security University press, 2009 edition, page eleventh.

⑧ (day) Maeda Masahide: "handout" general provisions of criminal law, University of Tokyo press fourth edition in 2006, Seventy-eighth - 79 pages.

The paper explains the basic content is difficult to determine the form, theory can only say, I read the author's interpretation on form has three basic characteristics: one is to emphasize the elements is independent of the form meaning must be form, the constitution interpretation, but not the essence of. See (day) the Big Valley Real: "general" lecture on criminal law, statute hall 2007 version second version, ninety-seventh - 98 pages; two is that elements can only be plain meaning interpretation, against the defendant is not conducive to expanding interpretation, measure the interpretation properly and not standard is in favor of the defendant. See. 6, pp. 194 ; three is the rationality of rationality of conclusion of proposition logic. See (day) Yamanaka Keiichi: "general provisions of criminal law", Cheng Wentang in 2008 second edition, pp. 122 .

10 see (day) Maeda Masahide: "criminal law" fundamental, general, Yuhikaku publishing 1993 edition, thirty-seventh pages.

11 see. II, 121st pages.

12. 9, Ootani Mi book, 111st pages; leading to, thirty-sixth pages.

13 see Zhang Mingkai: "law theory", China University of Political Science and Law press, 2003, revised edition, 196th pages.

14 see (Japan): "criminal law of Otsuka Ren (general)", Yuhikaku publishing in 2008 fourth edition, fifty-eighth pages.

15 see Zhang Mingkai: "criminal law", Law Press in 2007 third edition, forty-fifth pages.

16. 6, seventeenth, 18 pages.

17 see (Italy) Beccari: "on crime and punishment", the yellow wind, Chinese encyclopedia press 1993 edition, page sixth, pp. 43 . Even though the crime punishment legal principle contents cannot be determined by contemporary scholars, only by Beccaria says, should admit the legal principle of crime and punishment has the form side, also has a substantial side.

The development of the principle of legality, 18 substantial side. Zhang Mingkai: "explain" legal principle of crime and punishment and criminal law, Peking University press, 2009 edition, page 46 below.

19 see (day) Naito: "lecture on criminal law pandect" (on), Yuhikaku publishing 1983 edition, thirty-sixth pages.

20. 6, Twelfth pages.

21 Chen Zhonglin: "Italy criminal law compendium", Renmin University of China press, 1999 edition, Eleventh pages.

22 see. Chuan Suo, 239th pages; Zhang Mingkai: "the nature" cases of murder with dangerous method, load China "law" in 1999 sixth, PP 105 below.

23 Chen Xingliang: "the relationship of form and essence: reflective criminal law review", "law of load" in 2008 sixth, 109th pages.

24. 6, 163rd pages.

25 has pointed out that, even if a "criminal law amendment" expressly added some crime, also does not mean that the increased activity was innocent. "Criminal law amendment" the original will constitute a crime is independent of the provisions of the phenomenon, not uncommon. In this case, can not think of the criminal law is to fill holes. For example, "criminal law amendment ( seven)" fourth the increase in organization, leadership pyramid selling, already constitute illegal, fraud and other crimes; Article 5 increase in the "illegal fund payment and settlement business, other types of" also belongs to the crime of illegal business.

26 see. 18, ninety-fourth pages.

27 of course, some people will think that this practice violates the principle of legality positive. But I do not admit the crime punishment legal principle positive. See Zhang Mingkai: " judicial criminal and non criminal jurists" carrier "", 2008 fourth, sixty-fifth pages.

28Claus Roxin, Strafrecht Allgemeiner Teil, Band I, Aufl. 4, C. H. Beck 2006, S. 151

29 (DE) H coing: "philosophy", translated by Lin Rongyuan, the Chinese press 2003 edition, page eighty-fourth, eighty-sixth pages.

30 Chen Xingliang: "the law" (the book), Renmin University of China press, 2008 second edition, 500th pages.

31 Zhang Mingkai: "criminal law", Law Press in 2003 second edition, 588th pages; leading Chuan Wen, page 558th.

32 see Chen Xingliang: "case of criminal law" (II), Renmin University of China press, 2009 edition, 253rd pages.

33 see. Zhuan Jung, 388th pages.

34. 6, 195th pages.

35 (days), and Tokyo - and with the "theory", the criminal law: III, Tokyo - gas, and, with the 2006 third edition, twenty-first pages, page 22, page fifty-eighth. Substantive interpretation about Japan's restrictions on the scope of punishment, formal interpretation examples on it enlarge the scope of punishment, see (day) Yamamoto Uji: " highest load story", Sun Zhankun, Qi Mei translation, Peking University press, 2005 edition, 191st pages, 300th pages.

36. 11, fifth - 6.

37 (day) Maeda Masahide: "modern society and material theory of crime", University of Tokyo press, 1992 edition, page twenty-fourth.

38 concepts of crime and non crime, give a person with "a lot" of crime and "substantial" non criminal feeling. In fact, a country will be a previously not dealing with a criminal behavior to the crime, belong to the crime; criminal law conversely, in the past as a crime will not be punished for the crime, is non crime. In this sense, the crime with the non crime on the criminal legislation, criminal law is basically equivalent to add, modify.

39 see. 27, sixty-fifth pages.

40 see (day) the good: "criminal legislation of activity and use of same close on every", "the law times" 2003 Vol. seventy-fifth No. second, pp. 4 below.

41 see. 40, fourth pages.

42 see. 14, 123rd pages; leading to, Ootani Mi book, 116th pages; (day) pass thickness: "crime significance and function theory system", "foreign law" set in 2010 first, twenty-fifth.

43 Chen Xingliang: "four basic rules" conviction, "procuratorial daily load" in November 5, 2009, third edition.

44. 9, Ootani Mi book, 111st pages.

45 (day) Yamanaka Keiichi: "on" the criminal law, Cheng Wentang in 2009 second edition, 730th pages.

46 (day) the Big Valley Real: "criminal law" on the notes, Cheng Wentang published in 2007 second edition, 343rd pages.

47. 45, page 447th.

48 (day) had Genwei Yan: "on" the criminal law, Hong Wentang in 2001 third edition, 298th pages.

49. 46, page 573rd.

50 that is, perhaps, Professor Ootani Mi think that the explanation of their remains the formal interpretation, but even Chinese explaining theory, I don't think this explanation is a form of interpretation. In this sense, Ootani Mi professor said form and Chinese scholars call form may not be the same. So, there are two possibilities: one is professor Ootani Mi's interpretation on form and its constituent elements of the essence of the interpretation of contradiction between; two of some Chinese scholars misunderstood Ootani Mi's formal interpretation.

51 Chen Xingliang: "case of criminal law" (Volume I), Renmin University of China press, 2009 edition, page forty-seventh.

52 according to the semantic interpretation or public understanding, prostitution is refers to "the women selling body", "young refers to prostitution (highlighted in the night) " prostitution ", refers to a man to play with a woman", a "prostitute" (refers to the "modern Chinese Dictionary", the commercial press in 2005 fifth edition, 913rd pages, pp. 1045 ., 646th pages. Obviously, this explanation cannot be applied to criminal law.

53. 14, page 123rd.

54 (DE) Gunter Shitelateng Waite, Lothar Cullen: "general provisions of criminal law of I -- Theory of crime", translated by Yang Meng, Law Press, 2006 edition, page 81 .

55 Chen Xingliang: "to struggle in school of criminal law", "law of load" in 2010 first, 148th pages.

56. 55.

57. 6, 146th pages.

58. 6, 146th, 147 pages. In fact, the two design cases belong to different types, should not be equated with.

59. 9, Ootani Mi, ninety-seventh - 98 pages.

60. 9, Ootani Mi book, 247th pages.

61. 6, 189th pages.

62 Zhou Guangquan: "criminal theory system reform", China legal press 2009 edition, page 259th.

63. 9, Ootani Mi book, 138th pages.

The 64 leading group, eighty-ninth pages.

65 (day) Hirano Ryuichi: "Introduction" of criminal law, University of Tokyo press 1977 edition, twenty-fifth pages.

66 (Japan): "the good" in criminal law, general notes, Yuhikaku publishing 2008 edition, page ninety-second.

67. 66, page ninety-first.

68. 12, Ootani Mi books, 295th - 297 pages.

69 see. Chuan Yao, 464th pages.

70 (DE) Xu Qiuman: "to distinguish crime function", Xu Yuxiu, Chen Zhihui, : "not be dedicated to law and justice -- a Naiman criminal law." the professor, Taipei spring sunshine Forum 2006 edition, 434th.

71H. Jescheck/T. Weigend, Lehrbuch des Strafrechts. Allgemeiner Teil, 5 Aufl., Duncker & Humblot 1996, S. 247

72 see (day) pass thickness: "general provisions of criminal law", Yuhikaku publishing in 2007 second edition, thirty-fifth pages.

73. 6, 192nd pages

Lead to big real books, 74 the first 115th pages; leading 11, ninety-fourth - 95 . There is a need to explain, the two professors did not seem to have the elements of criminal law has not stipulated clearly is a supplement for the elements, or supplement for the illegal independent factor.

75. 55, page 145th.

76. 38, 193rd 194 page.

77 the author advocate objective exceeding factors concept, similar problems also exist, scholars deemed in violation of the principle of responsibility (see Li Hong: "general provisions of criminal law issues", Renmin University of China press, 2007 edition, page ninety-fourth). But, first, I was not the objective exceeding factors as illegal elements specialized, but belong to the elements ; second, the behavior of the objective requirements of elements over which the possibility ; third, the author advocates the objective exceeding factors range pole. In the author's opinion, the crime of theft and other large amounts as well as precondition fact elements if the circumstances are serious, is the intentional understanding object ( see Zhang Mingkai: "on the theft of the content of intention", "law" in 2004 eleventh years, sixty-second pages; Zhang Ming Kai: " punishment to be upgraded conditions understanding", set "Tribune" in 2009 fifth, eighty-fourth pages).

78 Chen Xingliang: "the law" (the book), Renmin University of China press, 2008 second edition, 829th pages.

79. 29, page tenth.

80 Wu Jingxiong: "research" legal philosophy, Tsinghua University press 2005 edition, 224th - 225 pages.

81 (DE) Byrne Weiders: "jurisprudence", Ding Xiaochun, Wu Yue, Law Press, 2005 edition, page 308th.

82 (Law) Jacques Geithner Dan, Gilles Gubo: "the French civil law", Law Press. Trans. Chen Peng et al, 2004 edition, page fortieth - 41.

83 (Norway) Stein U Larson chief editor: "social science theory and method", Xiao Ren et al, Shanghai people's publishing house, 2002 edition, page 304th.

84 (DE) Atu Kaufman: "philosophy of law", Liu Xingyi et al, five Taiwan South Publishing Co., 2000 edition, page fifty-eighth.

85. 80, page eighteenth.

86. 29, page 186th.

87 (DE) Atu Kaufman: "by analogy with" essence of things "-- type theory", translated by Wu Congzhou, the Taiwan academic culture Co., 1999, pp. 89 .

88 (Law): "the European civilization" Guizot, Cheng Hongkui, Yuan Zhi, commercial press, 1998 edition, page seventh.

89. 84, page eighteenth.

90. 6, 194th pages.

91 (day) the Big Valley Real: "lecture on criminal law pandect" (new edition Second Edition), Li Hong, Renmin University of China press, 2008 edition, page fifty-ninth.

92 Su Junxiong: "I" general provisions of criminal law, the author issued revised in 1998, 261st pages.

93. 71, S.145f

94 (day) Matsuo Hiroya: "criminal procedural law" the Japanese scroll (New Edition), translated by Ding Xiangshun, Renmin University of China press, 2005 edition, page 246th.

95 Claus Roxin: (DE) "in German criminal procedural law", translated by Wu Liqi, Taiwan's press 1998 edition, page 145th.

96. 78, page 910th. This explanation from the Supreme People's court in 2000 November 27 day "on Several Issues concerning the specific application of law in the trial of criminal cases of destroying wild animal resources in the interpretation of" second.

97. 78, page 919th.

 

 

 

 

             

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Formal interpretation to declare theory

Chen Xingliang.

"Chinese law" 2010 (4)

Abstract formal interpretation of formal rationality of legal principle of crime and punishment advocated based on, through the elements of form, will substantially be punished but lack of provisions of criminal law excluded from outside the scope of crime. In this paper, a theory of different levels on the elements and the criminal law concept from the interpretation method of interpretation, form between theory and substantive theory arguments were investigated on jurisprudence. The author thinks, interpretation on form and interpretation on substance dispute, is the principle of legality and the theory of social harm competition, but also the form of criminal law and substantive criminal law dispute. Author in the form of criminal law interpretation of the relationship between theory and interpretation theory on the basis of investigation, further explain the rationale for a declaration of the form, the essence of the interpretation theory of criticism.

Keywords formal interpretation on the essence of interpretation on the principle of statutory crime form side substantial side

 

Interpretation on form and interpretation on substance is becoming an aspect of China's criminal law school debate. The this debate is not only a theory of interpretation of criminal law dispute, but is the theory of value and function of criminal law ontology dispute, even to the point of view of criminal law level, the resulting form the idea of criminal law and substantive criminal law confrontation. The I claim form the idea of criminal law, and criminal law from the basic position of the form view, deduce the formal interpretation conclusion. Therefore, the interpretation on form and interpretation on substance dispute, should not be limited in the scope of criminal law interpretation, but should the opposition and substantive criminal law from the criminal law theory, to explore the interpretation on form and substance to explain differences in form, thus expounded the explanation of motivation theory.

A

Interpretation on form and interpretation on substance first involved is the methodology problem of an interpretation of criminal law, so it can be launched in the interpretation level. It should be noted that, in the interpretation of the law, had no formal interpretation and substantive theory points, and only the objective interpretation and subjective interpretation of don't. Our country scholar Professor Liang Genlin early in the aim of criminal law interpretation of the interpretation and substantive interpretation of the category, points out: " on legal interpretation about the goal of legal interpretation has always been there, subjective interpretation and objective interpretation, interpretation on form and interpretation on substance. The legislative intent of the subjective interpretation theory emphasizes the interrogation of legislators, this is an emphasis on respect and loyalty to lawmakers to pass the legislative intent of the legal text expression on interpretation, and therefore also known as formal interpretation. The theory of objective interpretation of legal texts are found the proper objective meaning. In short, this is the original intention of legislation which emphasizes the legal text independent, trying to break free of legislators, and according to the changing situation and suitable target, reasonable legal text mining. Now the explanation theory, which is also known as the essence of the explanation of the. Suit with this photograph, punishment

Interpretation of law interpretation is a form of target interpretation and substantive interpretation theory." ③

In this argument, Professor Liang Genlin will subjective interpretation is equivalent to the formal interpretation, and the theory of objective interpretation is equivalent to the substantive theory, it is worth discussing. As the scholar has said, the two are not the same problem. Subjective interpretation and objective interpretation major struggle

The provisions of the criminal law is the meaning should change with the time, the outside world and people's values and rheological problem, and interpretation on form and interpretation on substance for the main solution is the limitation problem of interpretation, namely explain whether the literal meaning can only follow the provisions of the criminal law issues. The therefore, between the subjective interpretation and objective interpretation and interpretation on form and interpretation on substance, although there is some overlap, but in two different categories. For example, in the interpretation of criminal law standpoint, I advocated the theory of objective interpretation. But in the limitation of interpretation of criminal law, and I is that the interpretation on form, are not contrary to their. In fact, subjective interpretation and objective interpretation of the problem, in our country basically has been resolved, namely the theory of objective interpretation into a few. China's Supreme People's court in the case guidance related, also clearly advocated the theory of objective interpretation. The and interpretation on form and interpretation on substance, is a controversial issue in the academic circle of criminal law of current concern. Therefore, only

From the point of view of our criminal law knowledge background, to fully understand the interpretation on form and interpretation on substance as a method to explain practical significance of methodology for the.

In the interpretation of meaning, Chinese scholars described the interpretation on form and interpretation on substance meaning, pointed out: " interpretation in the current criminal law China problem, existence form of interpretation and substantive interpretation theory. Formal interpretation core meaning theory claims that loyalty to counts, sometimes even their familiar law meaning. Claim to the nature of crime substantive theory as the guide, to explain the elements of criminal law. The essence of penalty but the lack of form is the provisions of the act, substantial interpretation theory claims that without violation of democracy and to predict the possibility of expansion, as the interpretation of criminal law. When the criminal law provisions may be not worth when punished, through interpretation on substance, the simple criminal law text but in essence is not worth the punishment behavior excluded." The above discussion clearly put forward the interpretation on form and interpretation on substance confrontation. Caught my attention is, two case interpretation on substance of the theory : first, the essence of worth

The penalty but the lack of formal provisions of the act, the essence of the interpretation can be convicted. Second, for the criminal law provisions may contain not worth punished behavior, through substantial explanation to a crime. For the second point, formal interpretation is not opposed to, because in favor of the defendant's interpretation of a crime does not violate the principle of legality, nor did it violate the formal interpretation on purpose. In other words, substantive interpretation based on the form of interpretation, that although the form characteristics consistent with the legal text but does not have the necessity of punishment act in addition to constituent elements, even in conformity with the Constitution also can be the ground for elimination of misfeasance and responsibility deterred from and excluded, this does not violate the principle of legality, but also

Is a formal interpretation due justice theory. As the Japanese scholar Otsuka Hito pointed out: " on penalties, also does not deny all free. Especially in favor of human behavior direction of explanation, not suffer criminal law oriented constraints, can actually widely recognized ground for elimination of misfeasance and impediment of responsibility from the point of view of super regulations." ⑦

However, in some substantive interpretation of the domain, often to the formal interpretation as a law, which is according to the literal meaning of legal texts, even is the usual meaning of mechanical explanation of criminal law, therefore, forms of interpretation not substantive standards, not substantive justice. The this view to explain the form of description and interpretation on substance of the dispute of whether substantive judgment to struggle, this is a misunderstanding of the form, or is a fictional. Based on this misunderstanding or fictional form. On the basis of the theory of interpretation and criticism, as Dr. Zhou Xiang said, is the existence of "shoot the target". The actually, interpretation on form, at least is that the formal interpretation of I, not against substantial judgment, not by substantive judgment against the necessity of punishment, the lack of the necessity of punishment to crime. Formal interpretation fundamental distinction between theory and substantive theory lies solely : criminal law to explain, to judge whether the form, then the essence. In other words

The formation, in order to logical relation between formal judgment and substantive interpretation of judgment. There is no so-called form stipulated in the criminal law case, can be convicted by the substantive interpretation?

Therefore, the focus on form of explanation and interpretation on substance differences lies above the first point, whether through substantial judgment will substantially be punished but lacks the forms prescribed crime? this, formal interpretation is firmly negative attitude, but the essence of interpretation are positive. Here the "lack of form", what is the legal provisions or the law does not provide ? If the law, even invisible provisions, also completely legal methods to explain why can reveal, adopting the so-called substantive theory? if not prescribed in the law, how could the essence of the interpretation the crime of ? And, in this argument, in essence should be punished this judgment is before the law has no provisions. In the substantive judgment to a strong leading, the principle of legality under attack. In this case the interpretation is not a strict interpretation of the legal text, and completely beyond the legal text.

So, the essence of interpretation of criminal law interpretation of how to treat the crime punishment legal principle has the function of restriction? Chinese scholars as the substantive theory as follows: defense "substantive interpretation mainly on repeatedly by critical reason is the essence of interpretation may violate the principle of. This is a misreading of the essence of the interpretation theory. Any explanation, no matter is in the form of explanation or interpretation, is take the text as the basis, otherwise it would not be an explanation. Substantive theory in fact is also adhere to the principle of legality. But in the substantive interpretation of criminal law on the eyes, not only has the form of side, but also has substantial side. The criminal law in the process of the application, not only can realize the formal justice, must also realize substantial justice." Chuan looks according to the above discussion, interpretation to law as a precondition. Indeed, any interpretation have to text as the basis, but in a text based explanations are not necessary and the principle of legality is consistent with the. Only when interpreted behavior included in the legal text, the interpretation of criminal law is in line with the principle of legality; and when interpreted behavior is not included in the text of the law

The text just provides rules for "most similar", this explanation is the analogy to explain the principle of legality, and the contrary is beyond doubt. In a word, the legal interpretation can be law interpretation, and may be outside the law interpretation. Only the law interpretation is in line with the principle of legality; and law interpretation does not meet the statutory crime. Therefore, do not think that is the basis of legal text explanation must comply with the principle of legality.

In addition, the paper put forward an important proposition relates to the legal principle of crime and punishment content: statutory form side and the substantial side, or that is in the form of statutory and essence of crime. This reasoning, formal interpretation insist is the formal principle of legality, and the only substantive theory not only adhere to the legal principle of form, but also adhere to the essence of legality. Commentators believe that, from the form of legality to the essence of the legal principle of crime and punishment, which is the development of a legal principle of crime and punishment from the primary form to the senior form. Also, from the formal interpretation to the essence of interpretation and explanation on the evolution from the primary form to senior forms, which are substantive theory for evolutionary basis. It should be said, this view still has a larger market. For example, Professor Liang Genlin pointed out: " general interpretation of criminal law, the idea in the form of legal principle of crime and punishment under the domination of nineteenth Century on, tend to adopt the form of interpretation and subjective interpretation, since the 20 century, the essence of legality

Under the leading of the interpretation of criminal law is insisting on substantive interpretation and objective interpretation." Chuan Shi here, the need for the principle of legality to correctly understand the spirit, which is the judge interpretation on form and substance to explain the key.

Two

The principle of legality is the biggest legacy enlightenment to modern criminal law, criminal law and society under the rule of the internal spirit. However, the principle of legality itself also experienced a process of evolution, namely, from the legal principle of absolute to relative legality principle. It should be said, the absolute principle of legality and the principle of legality is mainly relative to a legislative problem, that criminal law is set to determine the relative legal punishment, whether or not to grant the judge discretion. Of course, in the interpretation of criminal law, also reflects the evolution of the principle of legality. The crime punishment legal principle absolute is prohibited to explain criminal law judge. For example, Montesquieu thinks, if allows the judge to explain the law, the judge in relation to a citizen's property, honor or life cases, there may be harmful to the citizens of the interpretation of the law. Chuan Rong and Beccaria is explicitly pointed out that, strictly abide by the criminal law text troubles and interpretation of law cannot be put on a par with the confusion. Therefore, shellfish

Scalia tries to stop people are deadly free interpretation, it is a source of tyranny and favoritism. Chuan above Suo on legal interpretation simply deny the necessity of course is untenable, because judges are engaged and classifying work is not a humanization "( Supsumtionsau-tomaten) ", the meaning must always be in the legal text options, which according to the specific rules of creative activity, known as. Chuan Yao thus, interpretation of criminal law is essential for the application of criminal law is not the interpretation of criminal law, is Chinese law in 2010 Fourth Period

No criminal law. However, whether this comes out of the substantive principle of legality is worth doubt.

In fact, the principle of legality and the form of the corresponding sense of the essence of the principle of legality, originally derived from the Italy the essence of the principle of legality of the. For example, our country scholar Professor Chen Zhonglin in the translation of Italy scholar's works mentioned in Italy criminal law principle of legality is also known as the principle of legality, and the principle of legality is divided into the legality of the form and substance of the principle of legality. Professor Chen Zhonglin pointed out: " Italy famous criminal scientist F. Mandovani, according to the authoritative source of legitimacy, the so-called 'form principle (ilprincipio di legalit à for male) ', is a kind of 'law' legislation merely as organs of statute law, as the form of illegal crime the essence of the content, emphasize the legal performance form and determine the relative importance of free, criminal law protection of citizens' real intention; so-called legitimacy principle '(IL principio di legalit à sostanzial) , refers to regard justice as the essence of law, that' no harm to the society is not a crime

Men sine iniuria) , emphasizes the fundamental social condition is the main criminal law. In view of 'formal legitimacy principle' and China criminal law scholars said 'the crime punishment legal principle' has basically the same content, and in favor of Italy should adhere to the principle of legality '' form, is the Italy criminal law scholars basically consistent with the proposition, this book is still in the country's habit, will Italy 'in the criminal law principle of legality' into 'the crime punishment legal principle'." 

Thus, the Italy criminal law educational world although there is the legitimacy of the principle of legitimacy of form and essence of said, but corresponds to the principle of legality, the principle of legality is the only form of Italy, and said so. In other words, the principle of legality is opposite in nature and the principle of legality. Especially the legality principle in criminal essence the essence that "no harm to the society is not a crime", recognize the crime can put aside the law form, directly to the behavior harmful to society as the crime of standard. The theory of social harm run in the same groove Chuan Wu this theory and our country tradition, because "no harm to the society is not a crime" this proposition is very easy to derive the "social harm is a crime" in this negative proposition. The above propositions are form elements of negative crime in the substance of a crime, which leads to the rule of law

Destruction. \

However, Professor Chen Zhonglin in the time of China's criminal law, is taking a clear identity of thought, the legal principle of crime and punishment the substantial points out: " western in the essence of the principle of legality of criminal law's understanding, any from any era law could not reach the acme of perfection. Luo Wanxiang, the right premise, against the legal provisions as dogmatism, emphasizes the subjective judge in the judicial process, specifically in the pursuit of specific cases. For these people to a correct understanding of the nature of law and guarantee law active normal play, the real need to prevent the law from the society and in the field of law against the tendency of law as a stack of formalism as a pure concept, has a positive effect can not be ignored." Chuan ¬ although professor Chen Zhonglin also pointed out that the risk of substantial understanding of the principle of legality has finally been blind instinct to introduce legal nihilism mire, substantial value but still advocates the principle of legality. Especially professor Chen Zhonglin in the "

Italy scholar's works have pointed out that the principle of legality only form to correspond to the principle of legality, and the principle of legality and the principle of legality actually has nothing to do, or even completely opposite. But Professor Chen Zhonglin still take the principle of legality form known as the form of understanding of the principles of legality, the principle of legality is called the real understanding of the essence of the principle of legality, the principle of legality, a fictional conflict between form and substance of the principle of legality in value. Professor Chen Zhonglin pointed out: "the essence of the method problem in real law to seek the true meaning of outside the law, 'the principle of legality in the' understand 'as the embodiment of human rationality' of 'natural law' people, in real life to follow the 'live' or 'judicial creation method' ( nullun crimen sine iniuria); the value of law in orientation emphasizes human interests should be subordinated to the needs of society, life will maintain social basic criminal conditions as a primary task, in the criminal law

Questions on criminal variety of forms and contents of uncertainty (Nullum crimin sine iniuria -- without harm to the society is not a crime ), this is the Western essence of 'the crime punishment legal principle' criminal law doctrine." Chuan Jin

By is, it has nothing to do with the principle of legality is the essence of the principle of legality, is converted into the substantive principle of legality, is not only related with the principle of legality, but also a correct understanding of the principle of legality, the complete subversion of the protection of human rights for the principle of legality, the value orientation of the legal principle of crime and punishment, at least the principle of fuzzy appearance.

Professor Chen Zhonglin from the opposite of the principle of legality form and substance of the principle of legality, made the following interpretation, on how to resolve the relationship between the principle of legality and analogy points out: "how to treat analogy conflicting values, essentially is how to treat 'principle of legality' understanding and understanding the essence of formalism is contained in the. If sexual life as the first method to determine apparent method, in order to protect the freedom of citizens as the ultimate goal of the criminal law, think that fairness and justice legal intrinsic value should express the forms to the law, criminal law to protect the public interests of the society functions in guaranteeing personal freedom of citizens on the function, then the abrogation of analogy is of course of righteousness. If you think of justice as the law can exist according to emphasize the protection of the interests of society, is the primary task of criminal law, there are contradictions in the legal form and the law of intrinsic value, the intrinsic value of the law in the first place, in the event of a conflict between freedom and social and personal interests, personal freedom shall be subject to the interests of society, that analogy is the natural choice rationality. Intrinsic value and legal certainty of individual freedom and social interests, the law, the

Two of the modern legal society the most basic value conflicts that historically placed in front of us." Chuan Ying

Although professor Chen Zhonglin on the other hand, at the expense of contradiction for the dilemma is not allowed to hand select only the contradiction however, Professor Chen Zhonglin stressed that China's criminal law should intrinsic value pursuit of the principles of legality, there is no conflict between the intrinsic value and tries to demonstrate the analogy system and the principle of legality, which appeal to retain the analogy system 1979 in the criminal law revised criminal law in 1997. Thus, this does not exclude the legal principle of crime and punishment by analogy, the so-called essence of the legal principle of crime and punishment, but not the principle of legality, rationality and legality principle form it contains is draw further apart. Can say, the essence of the principle of legality is the substantive theory of motivation. For example, Professor Chen Zhonglin puts forward the modern rule of law in the final analysis is human rule, rule by conscience, thus a common sense, common sense, common sense is the proposition of the modern rule of law spirit. Jian looks this proposition is applicable to the interpretation of criminal law, will realize the common sense, common sense, common sense as the criminal law explanation of Gen Benmu

The. In this case, common sense, common sense, common sense has become a substantive theory to substantive justice identification. The problem is, whether we should distinguish between the legislative and judicial two aspects: in legislation, common sense, common sense, common sense as a punishment for sin is correct. However, if in the judicial level knowledge, common sense, common sense as the substantive justice above the law, it would be very dangerous.

About the form of the principle of legality and the principle of legality of real. As mentioned before, the substantive principle of legality is not the legal principle of crime and punishment, but Chinese scholars in Italy criminal law principle of legality of the essence of an interpretation. However, the legal form and the substantial side side, is the Japanese criminal law educational world common view. Japanese scholars generally think, the crime punishment legal principle has the following six principles: (1) derived criminal law of non retroactivity; (2) out of the customary law principle; (3) prohibition of analogy principle; (4) the absolute prohibition of Indefinite Penalty; (5) criminal law; (6) criminal law. Jian Jung in the six derivative principles, the first four is embodied in the form side of the principle of legality, the two is the reflection of the essence of the side of the principle of legality. It should be said, two deriving principles the principle of legality of real side, which is mainly influenced by America law. The Japanese scholar Otsuka Hito pointed out: 'law "USA law civilization accuracy (definiteness)

Theory (Theory ', Void is unavailable because not clear for vagueness doctrine) , about what is proper to tell the national crime and as judges apply the method pointer, criminal law is not clear, should refuse to apply it as' entity; ( Substantive due process) program theory', i.e. the constitution a proper procedure requires the criminal procedure has a proper and solid content of criminal legislation is reasonable, on the other hand, is unconstitutional, and these are the legal doctrine of crime derived principles." Jian Suo

It should be pointed out that the essence of the principle of legality, the side with the principle of legality in spirit form side are identical, the value has the protection of human rights. In this regard, Japanese scholars pointed out: " legal principle of crime and punishment to be substantial safeguard human rights principle, but is only required in the behavior has stipulated crime and punishment of the law is not enough, but, the criminal laws and regulations must also be appropriate. The principle of legality today can still serve as a criminal legislation and the Criminal Law Hermeneutics, be on the upgrade has guiding principle, mainly because the above principle, form in democratic, liberal, and the general principle of higher level, namely "the protection of human rights principle" substantial support. This principle, which contains guarantee basic human freedom, respect for the fundamental rights of human thought, that is to say, in the substantial safeguard personal dignity as the infringement of the rights and freedoms are not affected by the background of national criminal jurisdiction." Jian Yao described above will guarantee of human rights, the principle of legality, democracy through

The principle of form and essence of the lateral side, I agree. However, the Japanese scholars will be substantial side of the principle of legality as compared to the side of the principle of legality is in the order of value of a higher level, I don't agree with this point of view. In fact, form the side of the principle of legality is mainly restricted by the legislative power of judicial power. Jian Wen classical school is legislative supremacists, any attempt to use into criminal law culture to limit the judge. But the essence of crime is the opposite side of the right limitation, whether it is not clear that legitimacy is invalid or solid content, is refers to the restriction of legislative power, which has the function of constitutional government. Therefore, the principle of legality and the form side substantial side has its own function, they do not have the same value, nonexistent value difference. Can imagine, if the substantial side only emphasize the principle of legality, a clear and legitimate criminal law, even in full compliance with the substantial side of the principle of legality, but

If not through the limit form side the legal principle of crime and punishment of judicial power, so the substantial side of the legal principle of crime and punishment can only be a mere scrap of paper.

Notable is, in Italy's criminal law, there is also a clear and definite principle (IL principio di tassitit à e di deter-minateezza) , its requirements on crime and criminal sanctions must be clear, will not they apply the law does not clearly defined. The principle of substantial side with Japan in the science of criminal law principle of legality is very close, but the essence of the principle of legality is the main side of the legislative power limit. To define the principles of criminal law in Italy is the legislative power limit, and deterministic principle is the restriction on judicial power. Because of the explicit factors involve legislation should be how to stipulate the technical problems of committing a crime, the deterministic mainly solves how to explain ( understanding) law, especially whether to allow the analogy. But in the criminal law of Italy, clear and definite principle of nature is the principle of legality in the form of the three attributes from one of the principles, and not to the principle of legality of real. It also can be seen, the substantial side of Japan in the science of criminal law principle of legality of the legal principle of crime and punishment category, which is different from criminal law of Italy in the substantive legal

Principle, namely, China's criminal law scholars said the essence of the legal principle of crime and punishment. The key lies in the form of : how to deal with the principle of legality and the substantial side side. There are substantive interpretation of Japanese scholars criticized the following derived from the essence of the principle of legality of the side view, pointed out: "from the perspective substantive interpretation of criminal law, there is understanding, interpretation of the time, the necessity of the prediction must be in the range of language may have significance, the range of possibilities and protection a comparison is made between law, punishment. According to this view, 'legitimate substantive punishment scope and substantive (necessity punishment ) is proportional to the significance, and the provisions are usually inversely proportional to the distance between However, the principle of legality is even with the necessity of punishment, not punishment principle, therefore, in determining the scope of punishment, should not join the necessity of punishment to consider. The principle of legality is even at the expense of the necessity of punishment, but also to ensure national prediction based on the possibility of action

The freedom principle.

To emphasize the point even at the expense of the necessity of punishment to ensure freedom of action based on the principle of national prediction possibility, is the pursuit of the formal rationality of the principle of legality, as a method of interpretation of criminal law theory, is the formal interpretation. The criticism of Japanese scholars in the above discussion of ideas, is a famous Japanese criminal law scholars Maeda Masahide's point of view, in a sense, Professor Maeda Masahide is the initiator of evil essence of the interpretation theory. Professor Zhang Mingkai introduced professor Maeda Masahide about the interpretation of the legal principle of crime and punishment and criminal law point of view points out: " Maeda adhere to the principles of legality, but he was opposed to form the legal principle of crime and punishment, advocated from the substantive point correction of legality. Ideological foundation of democracy and liberalism of the legal principle of the criminal law, in the regulation of behavior, must consider the necessity of constitution, due process that crime in law doctrine and the entity has a close relationship, therefore, must understand the legal principle of crime and punishment from the essence. Qian Tian think, the interpretation of the criminal law must conform to the constitution. Interpretation of criminal law, the term may have meaning, and then determine the protection of the interests of the law the punishment regulations,

Considering the necessity of criminal law protection, then, when the line elements of the act has a certain value, the value and the benefit value measure; thereafter, calculating the effects of punishment on the behavior of other cases effect; finally, the coordination of interpretation and other legal consideration. About the range allowed, former Professor Tian proposed a famous formula: 'interpretation of the essence of the allowable range, justice and substantive necessary (penalty) proportional, and French are usually inversely proportional to the semantic That is the necessity of punishment is higher, the greater range of interpretation, from French language is usually more far, range allows interpretation of the smaller." 

Based on the above discussions, said Professor Zhang Mingkai Maeda Masahide opposed the form of the legal principle of crime and punishment, advocated the essence of the legal principle of crime and punishment. I can't help asking: substantial here in the form of the legal principle of crime and punishment and the essence of legality is corresponding to the legal principle of crime and punishment in the form of surface and the principle of legality side? If the answer is yes, then I cannot understand the reason is: the principle of Maeda Masahide against the crime in law form side where? because the crime punishment legal principle to liberal form side in advocating democracy and ideological basis, emphasizes the legal principle of the protection of human rights, the pursuit of the value of criminal law and the substantive aspect is. What's more, form side the principle of legality is to restrict the function of judicial power, the substantial side of the principle of legality is to restrict the function of legislative power, with the perfect! both nonexistent incompatible. If the answer is no, then the form of the legal principle of crime and punishment to where? professor Zhang Mingkai is Professor Maeda Masahide's followers, from Professor Zhang Mingkai on the legal principle of crime and punishment in the form of side and the substantial side relationship definition, apparently

Is the substantial side bias in the principle of legality, and Professor Maeda Masahide's stand in complete agreement. Therefore, the principle of a legally prescribed punishment against the form of Professor Maeda Masahide, is the form of the side against the legal principle of crime and punishment in a certain sense. We see Professor Zhang Mingkai on the legal principle of crime and punishment in the form of substantial side side and the following: form "principle of legality and the substantial side side also play a role, although the substantial side is then generated, but not because it has denied the form." Zhuan looks from these words, Professor Zhang Mingkai is the unity of form and essence of the side of the legal principle of crime and punishment on the side of. But not necessarily, Professor Zhang Mingkai reveals the conflict between the principle of legality, the form and essence of the side side pointed out: "of course, form side and the substantial side exists in two aspects

Conflict: one is the limitation of statute law the provisions of the criminal law can not be made without missing for all crimes, namely there is punished in essence, but the lack of such behavior; two is statute law is decided by the characteristics of criminal law may be not worth punished behavior, namely in the criminal law in words, but actually it is not worthy of punishment. The conflict between these two aspects, not only by emphasizing the form side, or only by emphasizing the substantial side to overcome, only maximally satisfy form side and the substantial side requirements, in order to make the conflict is reduced to a minimum." Zhuan Shi

The first conflict professor Zhang Mingkai points out, is China the ancients says "method of finite, infinite contradiction.". The ancients said: "the king first legislation, are feeling. Although love is infinite, and the law meaning Co., limited by the infinite love, is not

Also." Therefore, contradiction between the infinite and finite method and the sentiment of all ran. However, the ancient and modern treatment of this contradictory attitude towards different: ancient society popular analogy and analogous, and by analogy, overcome the limitations of statute law, realization of as many people as possible. The rule of law in modern society, follow the principle of legality, no crime without law. Law does not expressly provided in the case, even if there is need for punishment in essence, also cannot be convicted and punished. In this case, how could exist in form side of the principle of legality and the substantial side conflict? scratching. However, Professor Zhang Mingkai believes that there is a conflict, and that, it should be in the premise of principle does not violate the democracy and to predict the possibility of, for the expansion of interpretation of criminal law. Zhuan Suo makes me surprised is, in the form of legal provisions of the circumstances, can actually by expanding the interpretation of the crime, and what is not on the provisions of this?

Need to ask is: corresponding to the prescribed form is essence. So, the essence of law how to define? Is there a from legal texts (form) the essence? Which can understand the principle of legality form theory, substantive interpretation of that side of the essence of defects need through the legal principle of crime and punishment side remedy meaning: its omissions, criminal law all crime make impossible for No. Therefore, it is necessary for those with no criminal punishment in the form of the provisions of the act, shall be convicted by the substantial side of the principle of legality. Second, although the provisions for the crime of criminal law but not the necessity of punishment. Therefore, the essence of the principle of legality to the side of the crime. The question now is: the criminal law does not make impossible for all the omission crime provisions, this really is the legal principle of crime and punishment form side issues

I think, the provisions of the criminal law could not be made without missing for all crime is not the principle of legality form side defects. If this is a kind of defects, should be the defect statute or limitation. The crime punishment legal principle is based on the statute of limitations, a kind of value selection may have to make : even at the expense of substantive rationality should stick to formal rationality, the law does not expressly provisions of the act, no matter what is the social harmfulness are excluded from its scope of statutory in crime. Can say, based on the concept of the legal principle of crime and punishment, criminal law makes no provision for itself is a kind of provisions, that is not considered a crime. Therefore, in the context of the legal principle of crime and punishment, criminal law has double implications: expressly is crime, does not expressly not. And we tend to the principle of legality, there is a misunderstanding, it seems only to make provision for the innocent guilty, not specified. In fact: no express provision itself is. This is the meaning of the legal principle of crime and punishment! In this case, the provisions of the criminal law can not be made without missing for all crimes, how can it be said that crime

The principle of a legally prescribed form side of the defect? if you think that this is the principle of legality form side defects in essence, so we must return to the concept of crime, as long as have social harmfulness should be recognized as. Thus, the substantial side principle of legality is reduced to Italy in the science of criminal law principle of legality of the essence. Therefore, the so-called conflict form side of the principle of legality and the substantial side, actually is the criminal law in the form and essence of the contradiction, also can say is the conflict of legal formalism and substantive theory of law. On the formal side of the principle of legality and the substantial side, there is no conflict.

In this case, we should further question: substantive interpretation of the essence of the form to the legal principle of crime and punishment to overcome the side with the Japanese side in the science of criminal law principle of legality and the substantial side side is the same concept? side Zhang Mingkai principle and professor in statutory form out side the statutory form principle: " crime legal doctrine, request the judicial organ can only take the law as the basis of conviction and sentencing, but not to used as the reason of conviction and sentencing, and the judges not retroactive, not on interpretation of the law, shall not be declared not regular punishment, is to restrict the judicial power, judicial safeguard national free. Therefore, form the side of the principle of legality, fully embodies the form of the requirements of the rule of law." Definition of side above the principle of legality form is correct. Especially the legal principle of crime and punishment to the restriction on judicial power, show that it has the value of human rights protection. Therefore, form the side of the principle of legality has real value. The substantial side form side the legal principle of crime and punishment in the sense of the principle of legality and why the need to restrict? About the essence of the principle of a legally prescribed punishment side, Professor Zhang Mingkai pointed out: "the essence of origin principle of legality in the side as the ideological basis of the democracy and respect. The essence of the side of the principle of legality consists of two aspects: a clear penalty principle of law; content. Two is the penalty regulations. Substantial side mainly lies in the limited legislative power, full of distrust of legislative power. In other words, the essence of the side against the evil law is law, which is the essence of the rule of law perspective." Zhuan Wen

Defining the above principle of legality of substantive aspect is also correct, which is embodied in the legislative power limit. So, I can not help but ask: why form of the principle of legality and the substantial side side definition is right the essence, and the use of the principle of legality side to overcome defects of the form side view is wrong? problem lies in the essence of the interpretation theory in this proposition in the exchange of core concept: the so-called principle of legality form side of law refers to the evil law is. The principle of legality, the substantial side refers to the evil law substantive justice illegal. In this case, the relationship between the form side the principle of legality and substantial side is defined as "evil law is law and evil law is illegal opposition, the opposition of legal formalism and substantive theory of law. The so-called overcomes the defect of form side by side the essence of the principle of legality, legal formalism is the evil law is illegal legal substantive dispelling evil law is law. Between law and illegal, only two must be one. Therefore, in the form of the principle of legality and the essence of the side side, is bound to the substantial side negative shape

Side. And the unified form of the principle of legality and the essence of the side side, is just empty talk.

As mentioned above, the conflict between the principle of legality and the form side substantial side does not exist, is a completely subjective conjecture, because the form side of the principle of legality to restrict judicial power, preventing judicial arbitrary. Therefore, the principle of legality form side is the opposite of the judicial arbitrariness; essence and the principle of legality to restrict legislative side, avoid legislation. Therefore, the legal principle of crime and punishment the substantial side is the opposite of the legislation.

When the essence of the interpretation theory thinks that the principle of legality form side defects, defect and not the form side. It should be pointed out, to form rational position, for without a law but in fact be punished behavior is not punishment, it is necessary to implement the principle of legality. This how can say is the legal principle of crime and punishment form side? for this problem, can only use the methods of legislation to remedy, not through the so-called expanded interpretation (actually the analogy to explain ). Even agree to overcome this statement by the substantial side of principle of legality of defects on the formal side, in fact is not possible. Because the essence of the principle of legality is to limit the side of legislative power, its content is clear and the legitimacy of legal provisions, it can form on the side of the principle of legality to correct it? therefore, substantial interpretation on the essence of the principle of legality, not the substance of the real side.

So, what is the essence of the essence of interpretation? from substantive theory the paper, is the necessary means of punishment, and the punishment itself is the essence of necessity. Originally, the substantial side of principle of legality is said lawmakers should be banned, punishment is undeserved punishment act, prohibit cruelty, unbalanced penalty. In other words, we should have the necessity of Punishment Act provides for the crime. If so, the judiciary as long as strictly in accordance with the law shall be convicted and punished for an act, it can be transformed into the legislation of substantive justice of judicial justice, the legislation on the general justice into the individual justice. So what will appear according to the necessity of punishment did not form prescribed behavior of law to expand the explanation for the crime? therefore form, the principle of legality to remedy the punishment side of necessity should be the essence of the principle of legality, no side. Professor Zhang Mingkai pointed out: " interpretation of criminal law is full of justice in the heart is the premise of the eyes, constantly from the criminal law and the facts of life." The above proposition justice in criminal law is superior to the norms, but also in the life the truth. I can't help asking: who is this justice? What kind of rationality? (to paraphrase USA ethicist Macintyre book. Under the principle of legality, above the law and no justice. Thus, interpretation on form and interpretation on substance struggle, is actually to the crime punishment legal principle understanding controversy. How to correctly interpret the inner spirit of the principle of legality, is the interpretation on form and interpretation on substance to judge correctly the key.

Three

Formal interpretation between theory and substantive theory, of course, originates from the different understanding of the principle of legality, but not only this, but also relates to the interpretation or on each other. Among them, the core problem is how to explain the principle of legality of criminal law under the boundary. As mentioned before, the principle of legality, without a law based on is not a crime concept, the limit is the abuse of judicial power, the law does not expressly provided by the act of interpretation of criminal law to crime. But the legal principle of crime and punishment never judge expressly prohibited behavior on the interpretation of criminal law to the crime. Therefore, the interpretation of Criminal Law refers to the interpretation of the boundary crime boundary, it is a logical premise. In other words, the law expressly behavior should be crime does not involve formal interpretation or substantive interpretation problem. Zhuan ¬ therefore, our focus is expressly provided for in the law: No, in accordance with the substantive theory formulation, with no legal form under the provisions of the criminal law interpretation, whether through to

To the crime? only on this one problem, that interpretation on form and interpretation on substance. At the same time, we should also be clear, the interpretation of criminal law here mainly refers to the doctrinal interpretation, in certain circumstances can include judicial interpretation, but in any case can not include legislative interpretation. However, advocates the substantive theory of Professor Su Caixia of China's current nine legislative interpretation of criminal law is an empirical research conclusion: Interpretation adopts a substantive interpretation of criminal law in our country legislation position, in order to prove the persistence and maintain the essence of the stand of the interpretation function. Zhuan Jin I thought, to explain the position is not a justification of criminal substantive argument legislative interpretation of criminal law. Since it is the legislative activities, there is no legal text limitation, as long as the legislative jurisdiction, legislators can the legislative purpose of criminal law must be based on Creation

Van. In this sense, the legislative interpretation can be substantial explanation. But it can not be concluded, because the legislative interpretation using substantial interpretation method, so the judicial interpretation or doctrinal interpretation can also adopt the essential method of interpretation. Moreover, according to the research of our country scholar, nine legislative interpretation of criminal law can be divided into two categories: one is the criminal law clear specific meaning interpretation, two is to supplement the legislative. Legislative interpretation of the criminal law is not beyond the legislative interpretation of the rights, special legislation based on explanation, interpretation of the interpretation of criminal law does not of course can be used. Here, restrictive interpretation subject to interpretation, is a problem to be studied. Therefore, to explain the contradictory form theory and substantive theory lies in: in criminal law has not the so-called form defined circumstances, whether punishment necessary substantial sexual behavior by expanding the explanation to the. In this regard, formal interpretation theory is rejected, and explain the essence of the position

Is in the affirmative. On this issue, formal interpretation scope agreed possible semantics, a strict interpretation of the criminal law. It should be said, formal interpretation is not a substantive theory describes it, the literal meaning according to the provisions of the criminal law. Chinese scholars think forms explain the core meaning theory is concerned about the words, and that is all, but only the substantive theory to possible semantic as the limits of interpretation. actually, likely meaning is not the patent substantive theory, formal interpretation also advocated the possible semantic as explanatory boundary. The key question is: how to define the possible . The German scholar Luo Kexin put forward the possible semantic as explanatory limits proposition, pointed out: "the interpretation and the relationship between the absolute is not arbitrary, but from the principle of rule of law in the national law and the criminal law: because the legislation based on words express themselves only in words, not in the legislature this is not required, and not 'application. Applicable beyond the original text violates the criminal law, to intervene should have national self constraint in the use of the penalty force,

In order to consider should arrange their own behavior according to the law in my thoughts. Therefore, only in the possible meaning of this within the framework of the interpretation itself, can also play a preventive role of legal protection, and to be culpable violation of prohibition of behavior."

The possible semantics as the limit of criminal law interpretation, provides an objective criterion for distinguishing method can be verified with the law. Despite the possible semantic itself is often difficult to define, but there is such a standard is always better than no one better. As the German scholars pointed out: " legal meaning only from the provisions of the word. Provisions of the meaning is explained by the element, so it must be 'possible meaning' as the most wide limits in any case." Yang Rong

When looking for possible semantic, must start from the semantic interpretation, but is not limited to the semantic interpretation. In this regard, German scholars pointed out: "each explanation, all is according to the natural and special legal terminology meaning, from the written law ( Wortlant) to (and understand), the meaning of polysemy, produce in the history of law (Entstehungsgeschichte des Gesetzes) (Interpretation of History) and correlation system in the whole legal in the system of (Systemzusammenhang (im Gesetzesganzen) system as a supplementary means of interpretation further). Interpretation of the focus is to ask for special protection law (besondere Schutzfuntion des Gesetzes) objective meaning and purpose and law

(objetiven Sinn und Zweck des (Gesetzes) objective: to explain)." Yang Suo here, relates to the relationship of position to explain the various criminal law. In this argument, the German scholar according to the semantic interpretation, historical interpretation, system explain objective to explain such a sequence provides a guideline for the various method of interpretation of criminal law application, order relation is actually on the various methods of criminal law interpretation of the description of the. In the above order relations, semantic interpretation is the literal interpretation or literal interpretation is the preferred position. An order relation interpretation method and Chinese scholars in various laws, proposed the semantic interpretation is a priority for the proposition of legal interpretation, that in legal interpretation process, should be the pursuit of meaning as the starting point and end point of legal interpretation. In this regard, I am deeply convinced of that. In semantic interpretation to criminal law provisions, if

An act is not usually semantic, must further distinguish whether within the semantic range. It is possible only when the semantics contained, but the existence of multiple meanings, it needs to adopt other methods to determine its meaning. Notable is, advocate the substantive theory of Professor Su Caixia also believes that in the limit of the possible meaning "point", the meaning of elements have absolute priority, pointed out: " literal interpretation is the starting point of all interpretation, this interpretation of criminal law interpretation is the target sequence stability priority. Not only that, to achieve stability first, also asked the meaning with the limits of functions. The meaning is not only the starting point of all explained, is the end of all interpretation. Any explanation, no matter for system consideration or criminal policy objective considerations, are not more than the words of criminal law 'possible meaning' range." 

If a possible semantic restrictions other interpretation methods, it is consistent with the interpretation on form position. Because of possible semantics as a form of factor for the border of the interpretation of criminal law. But in fact, in the substantive theory where possible, and cannot be the explanation of criminal law boundary, it is necessary to the punishment decision possible semantic interpretation of criminal law, thus the boundary is not defined by possible semantics, but by the substantial value to define the necessity of punishment. In this case, the purpose of interpretation is not as professor Su Caixia said in the meaning of "within the boundaries may be ways of explanation, but qui" completely beyond the possible semantic interpretation method, has become the priority of validity, we can see Professor Su Caixia is how to verify the objective interpretation of : Based on appropriate purposes interpretation may be two kinds of "situation: (1) the provisions of criminal law when literal contains some improper punishment behavior, explanation based on purpose to consider appropriate punishment, from necessity restrictive interpretation

Elements, so as to ensure the freedom of citizens; (2) when criminal terms usually meaning failed to include some when the punishment behavior, based on the appropriate interpretation to consider, within the limits of the possible meaning range, this kind of behavior substantially expanding interpretation in, so as to protect the lawful." 

As mentioned before, the above 1 and interpretation on form no disagreement. In the second case, Professor Su Caixia usually meaning and possible semantic distinguish, thus forming a more than the usual meaning but not beyond the relation semantics. However, usually meaning and semantics between what is the relationship was not defined. The result is possible with the necessity of punishment and semantic exhibit elastic. For example, Professor Zhang Mingkai has repeatedly quoted professor Maeda Masahide reference about the substantive interpretation of the following formula: Yang ¬ interpretation allows the punishment scope necessity = / core meaning. The above formula can be summarized to explain the necessity and the allowable range of punishment is proportional to, and with the core meaning is inversely proportional to the distance. Professor Zhang Mingkai pointed out: " can not only consider the behavior language core and the meaning of criminal law from the distance, also want to consider the behavior of the law against the degree of punishment; therefore, the necessity of the requirements of high usage, and criminal law core distance more ease, to expand the interpretation of potential." Here nuclear

The meaning of the so-called heart usually meaning, it is not affected by the possible semantic constraints. In the two elements of punishment necessity and the core meaning of the distance, the real decision is necessary to explain the allowable range of punishment not possible. The possible semantic is expanding with the increase of the necessity of punishment, thus become an undefended boundary. In this sense, expanding interpretation, that interpretation did not predict the possibility. In the form of interpretation and substantive interpretation theory argument, explanation on the form is often interpretation on substance blamed for not do substantial judgment and without the necessity of punishment of crime. For example, Zhang Mingkai explained that, formal explanation is leading the search for a conviction in the elements outside of the standard, in violation of the principle of legality and the original intention of ; in addition, forms of punishment will expand the interpretation in many cases. Chang Ying at the same time, Professor Zhang Mingkai also called, substantive theory aims to: can only be punished behavior explanation for the crime, in other words, the essence of interpretation is a kind of

Business interpretation. 

 The above view itself is built in the form of explanation on misunderstanding as long as the formal interpretation not substantive interpretation on the basis of this, I was already clear. Is that I am more concern: and interpretation on form is expanding interpretation and interpretation on substance is restrictive interpretation? To this, carefully noted: "the serious textual interpretation on substance and form interpretation theory explain the conclusion, we also found a 'strange phenomenon in fact many controversial cases': a specific theory, or on issues, and substantive theory claims that interpretation of the restrictions on the opposite, substantive interpretation of the conclusions are not restrictive interpretation, the opposite interpretation on form the conclusion is more." What is Lian Shi remark. Formal interpretation is not a substantive theory that become expansion explained, is because the form of explanation on the essence of interpretation after the formal interpretation but also, it is a kind of double limit, its interpretation is limited interpretation. While the substantive interpretation is not as

He claimed a restrictive interpretation, because the essence explanation cannot form of interpretation, which is replaced by the form of interpretation, interpretation of the function of restriction on the form of substantive interpretation of all gone, the result is the essence of the interpretation of the criminal law and the provisions of the act did not form explanation for the crime, which will make it interpretation into expanding interpretation, even the analogy to explain. In order to understand the essence of interpretation is to break through the boundary of possible semantic substantial judgment the necessity of punishment, the criminal law not stipulated the crime of the behavior, we can discuss the problems of interpretation the following three criminal law terminology:

1 posing as military police robbery

China's "criminal law" article 263 posing as military police robbery provisions for the reason of punishment of aggravating robbery. In the theory of criminal law, the general will be here to explain the fake, this is the proper meaning semantic interpretation, there are no differences in semantics, such as our country scholars pointed out: " posing as military police robbery refers to counterfeit military, armed police, public security organs and state security organs of the police, the judicial police etc.. That is not the identity, for example, the unemployed as the people's police, or is the military and police personnel identity impersonate another military and police personnel identity -- soldiers posing as police officers; occupation as the same with their senior officers -- soldiers posing as military officers, should not apply for the

Set."

It should be said, the above explanation is consistent with the legislative intent, also conforms to the social public to predict this provides the possibility of. But Professor Zhang Mingkai was out of the ordinary as the explanation, is posing as the explanation for the fake and act as. Professor Zhang Mingkai on the real military and police personnel to show its military and police personnel identity of robbery should be how to deal pointed out: "in essence, military and police personnel to show its true identity is more raise the legal punishment of robbery robbery posing as police officers than. The criminal law is the use of the word 'fake', gives the impression that excludes a real military and police personnel display the true identity of robbery. However, there are provisions of criminal law 'a word used fake', so maybe that is not fake, fake. In other words, 'fake' including fake and act, its essence is to make the victim that human behavior military and police personnel, the military and police personnel shows its identity and robbed, should be identified as posing as police officers." Lian Suo

The above explanation is the following three aspects should be questioned:

First, thinking method essentially priority. The fundamental problem is the essence of judge interpretation on substance over form judgment, so as to the substantive judgment instead of formal judgment. In the theory of interpretation, interpretation on substance is a value judgment instead of semantic judgment, so as to break through the possible semantic constraints. Semantically, fake is fake, so according to the semantic interpretation can be simply exclude the real military and police personnel applicable possibility aggravated punishment provisions. So, why not to put real military and police personnel display the true identity of robbery as posing as military police robbery? basis lies in the military and police personnel necessary to display the true identity of robbery posing as police officers more than robbery aggravated punishment. In this case, if the police show the true identity of robbery rule out robbery posing as military and police personnel, is a form of interpretation, this interpretation on form could not be more aggravated the necessity of punishment in case interpretation, and thus requires the use of interpretation on substance added to correct. This kind of logic, not destruction

The principle of legality is logic?

Second, the real boundaries may semantics. Interpretation on substance in the general discussion, often usually semantic and semantic distinction, thus constructs while beyond the usual semantics, but no more than likely semantic such a situation, it seems with no chink in one's armour. However, when implemented on specific issues, we will find, may become Not the least trace was found. semantics, semantic is usually can go beyond the boundary. The problem is, I think is not any words have meaning domain certain elasticity. Some words with polysemy, or meaningful domain wide, this can be the value choice in the semantics of possible range. Therefore, there are usually semantic and semantic distinction, but in most cases, the lexical meaning is determined, so there is no semantic and semantic distinction usually. This also can use semantic interpretation rather than substantive interpretation. As a word is such, its meaning is fake. But Professor Zhang Mingkai had fake as usually semantic, and then to the substantive judgment possible semantic boundary. This applies to special circumstances -- exist usually semantic and

Can semantic distinguish interpretation method is extended to apply to all situations. In theory, and further promoted to substantive theory, danger is lurking is not difficult to gain insight into the. Notably, the importance of substantive interpretation theory to demonstrate the essence of interpretation of the meaning of words, usually distort. For example, Professor Su Caixia pointed out: " 'no law will be based on its general to all cases are all fair', because the language ambiguity, incompleteness of the essence of the literal, simple explanation but sometimes justice and damage the essence of human rights. As China's "criminal law" the provisions of article 111, for overseas institutions, organizations, persons who steal, spy on, buying, illegally providing state secrets, intelligence, 5 years 10 years in prison. For the 'intelligence', if only as a form of literal interpretation, namely 'about certain news or report', only for overseas institutions, organizations, persons who steal, spy on, buying, illegally providing everything 'news report about a situation or' behavior, constitute a threat to national security for overseas institutions, organizations, persons who steal, spy on, buying, illegally providing intelligence crime. In this form to the judicial restrictions on the semantics of law in the form of security, human rights, but apparently not expand the scope of punishment the crime penalty, the essence of the damage to the human rights and freedom." 

The above discussion aims to demonstrate, even words like "intelligence" also need interpretation, if only to make a formal interpretation would expand the scope of punishment. According to this reasoning, the word "secret" need for interpretation, because the form of interpretation might be interpreted as "not for matters" people know, the more is to expand the range of punishment. Such an argument while the reduction to absurdity, but in itself is absurd. Because it is the semantic interpretation of diminished to take the words too literally or shuowenjiezi. The German scholars explain on semantic is literal interpretation pointed out: " literal interpretation means, people infer legal attempts from the meaning of language. The major difficulty in the interpretation, must first clear, is the semantic law plays a decisive role, or language is often plays a decisive role in the." Lian Wen German scholars pointed out that the semantic interpretation

Two kinds of semantics, a semantic jurisprudence, namely professional terms; two general language, now commonly used. When carrying out the semantic interpretation, we should clarify some words is a professional language and daily language. Generally speaking, the professional language especially in legal language are all have a specific meaning, should be in accordance with the relevant professional standard or law interpretation. The everyday language of non professional, used in daily life, it should be explained according to the meaning of words daily. As state secrets, intelligence, itself is a legal term, we need to use legal interpretation legal method for semantic interpretation. Even in everyday language, in general also have a common meaning. For example, intelligence has special meaning, not a literal shows "about some news and reports". Therefore, although professor Su Caixia has repeatedly stressed that the literal elements have absolute priority, literal interpretation as the dictionary as "fortress", Lian Wu but on in front of substantive interpretation, semantic interpretation of the "fortress" do not attack

Since the broken, thus opened the broad line as the essence of the interpretation.

Even advocates substantive theory of Professor Liu Yanhong also does not agree with Professor Zhang Mingkai will pretend to be interpreted as counterfeit and act, think posing as military police robbery behaviour interpreted to cover a real police robbery, is a violation of the analogy to explain the principle of legality, instead of expanding interpretation in line with the principle of legality. Professor Liu Yanhong pointed out: interpretation theory proposes a criminal law "which is the real problem: when based on the substantive punishability explained boundary, explain where?" Lian ¬ this is a. For this problem, substantive theory should look before you leap.

Third, we demonstrate techniques. Professor Zhang Mingkai should include counterfeit and charge was demonstrated as mentioned, also use the fake in other criminal law, since in a criminal law, counterfeit and fake two term coexistence, its meaning should be differentiated. This is a speculation of legislative intent, of course, is also a way of argument. But the problem is that, in the criminal law of our country to use as a word is not confined to impersonate a police robbery, in the "criminal law" article 279 in crime of try every trick to mislead the public, also used as a word. Crime is to try every trick to mislead the public as state organ personnel to try every trick to mislead the public behavior. Professor Zhang Mingkai pointed out as state organ personnel identity to try every trick to mislead the public has three kind of situations, Lian Jin here posing as why not interpreted as counterfeit and act as? thus can not, the same language interpretation and

Consistent. In fact, in criminal law the same word has different explanations or different expressions have the same interpretation, these phenomena are existing, therefore, should be interpreted with different context.

2 destruction of property

China's "criminal law" provisions of article 275th of the crime of intentional damage to property. How to understand the damage here? The destruction, Chinese scholars generally explain that for destruction and damage, behavior: the legal "the crime of intentional destruction of property is destroyed, just as its name implies, damage including destruction and damage two. The so-called destruction, is refers to the public or private property lost or destroyed, making it already does not exist or existed, but has lost all its use value. The so-called damage, is refers to the public or private property is damaged, thereby losing the value or use value in part." China law 2010 fourth

It should be said, the above semantic interpretation is substantially correct, accord with the destruction of daily use of the word, so it has to predict the possibility. Of course, two degrees this explanation relates only to destroy, but no two forms: involving the destruction of physical destruction and functional damage, functional damage included in the destruction of a word, we should say no more than possible. It should be pointed out, on the destruction of how to understand a word, in criminal law theory is controversial, mainly in the following three points: Quan looks (1) utility. That damage refers to the behavior of the utility of damage to property. It is understood the concept of generalized damage from that, in the general status in japan. According to this, not only directly causes property damage resulted in the loss of all or part of the failure by the circumstances constitute damage to property, but property appearance did not destroy, but its utility is impaired

Should be regarded as damage. For example, the property owner to find hidden in the premises; will discard the gold and silver jewelry others to lake sea; in others the calligraphy and painting with ink dirt; gate others will let the fish pond open drain; others cage open to let in the cage the bird fly away; in others tableware in dung. And so on, all belong to the destruction of property act. The utility of trespass and divided into infringement of general utility and the original usage violation two specific propositions of different. Among them, the former think, as long as the general utility infringed property is damaged; but the latter think, only in whole or in part caused property damage, and put into use not according to the original state of use, can be regarded as. (2) physical abuse. That the damage of property refers to the force applied to tangible, intangible value, property damage cases utility, integrity of objects or damage. Obviously not applying physical force of the occasion, destruction of property can not be set up. According to the said, on the other

In investment cannot waste to use again, because of the tableware applying physical force, so the structure damage to property crime. If only the property concealed, because without imposing physical force on it, even damage its utility, value, also can not be regarded as damage to property. However, there are the scholars do not agree with this view, that the concealed property act itself is a tangible force of property, should be regarded as damage to property. Tangible violation is a German. However, the tangible against Germany and Japan that is not exactly the same. For example, visible against the Japanese said to put the gold ring into the damage behavior is applied in river tangible force questions not covered, and tangible against Germany said that, if not applying physical force behavior, it does not constitute the crime of destruction of property. In addition, the tangible against Germany said that, to make others fish, birds away, see others gold ring jettison to Hehai, does not constitute the destruction of property, not just the right or not

Applying physical force, more important is not that cannot be used according to its original usage property. This same Japanese tangible violation emphasizes to take itself against different. (3) intangible damage. That the damage is caused by damaged or destroyed invisible on property in whole or in part, so that the property can not or can not use according to its original usage. According to this, the essence is not the destruction of property a tangible force, is not whether the damage to property of utility, but that the means is causing property suffered material damage, and so cannot or difficult to restore to the original state, and therefore can not according to its original usage. Conversely, if only slightly damaged property, easy to restore the status quo, did not reach cannot use according to its original usage degree, cannot say is damage to property. In this context, the other fish in the pond loss, the cageling flying, the gold and silver jewelry dropped into the lake and sea, items will be hidden

Come, into the urine in the tableware, because there is no killing fish and birds, not cause material damage to jewelry, items, tableware, and therefore can not constitute damage to property crime. But the hidden property act are not not punishment, if the actor has the illegal means, it should be convicted and punished as theft. At present, the material damage said although not Japanese criminal theory through said, but supporters growing trend in recent years.

In the above three kinds of views, the property to be hidden so that the owner of the property loss of property rights do not belong to the destruction of property. Although the occult can make others lose the value of the property, but the property itself is not destroyed, not because the hiding property accords with the essential feature that the value of the property to reduce or lose will be identified as the crime of intentional destruction of property. In addition, in the above three viewpoints, to destroy the meaning is different from broad to narrow, respectively is: utility violation -- tangible violation -- material damage. In these three kinds of views, material damage that is more in line with the destruction of the original meaning, emphasize the value of property of physical loss or reduced. Tangible violation will be visible and invisible against the violation of property to distinguish, only tangible violation is destroyed, not destroyed intangible damage. But the tangible and intangible how defined against the controversial. The utility of trespass, the destruction of the understanding is too broad, literally meaning beyond destruction.

In the German criminal law theory, about how to understand the destruction of the same dispute. For example to other feeding birds flying behavior, can constitute damage to property crime? this, the mainstream view, behavior will others bred birds flying constitute not just a penalty (pure) "from possession" (Besitzentzhung) behavior; a few views the purpose of ownership that to the people, to determine the use of any defeat, to set up the damage or destruction. In this regard, Professor Wessels pointed out: "the German minority view has exceeded the legal text interpretation defined meaning for pushing the boundaries, because in the application of damage concept, human behavior to its function (Einwirkung dest tesquf die Sache selbst) either directly or indirectly they are." Thus, although the German penal code

Bad no provisions must be in physical on property damage as the prerequisite conditions of the form, but the damage to the term explanation based on the theory of criminal law, the German mainstream view or tend to damage as strict interpretation, to avoid the destruction of possession but not the property itself is causing physical or functional damage act as property damage behavior.

For the destruction of a word, the criminal law theory have different opinions, which is very correct. Relatively speaking, Japan to destroy a word understanding is wide, while Germany to destroy a word understanding is narrow, in the view above, Professor Zhang Mingkai agree with utility violation, pointed out: "the 'on the" 275 "in the provisions of the criminal law' destruction of understanding, not simply the daily used language meaning to people as the basis, and should pay attention to the provisions of the criminal law crime of intentional destruction of law to protect. Although the damaged beyond the language may have meaning, but not beyond the language may have meaning, but also can realize the purpose of criminal law, we should take this interpretation. The utility violation is so." Quan Rong utility violation is emphasized, namely the legal interests protected by the criminal law -- property utility is compromised, but for the behavior of whether the destruction mode does not take into account the damage.

In fact, the destruction of the first is a kind of behavior, damage to property utility case, if we have to examine the utility property damage is caused by the destruction of human behavior. Only in this way, will not damage the meaning is too broad. For example, for the high into a low way stock operation make the property loss of the behavior of others, whether to constitute the crime of intentional destruction of property, the key is how to understand the destruction. In such cases, Professor Zhang Mingkai and I view is the opposite, this opposition is reflected form interpretation, theory and substantive theory dispute in the case of this, I think: if the case high into a low stock trading to make others property loss behavior can be interpreted as destroyed, so, the criminal law provisions of the destruction of the word lost the limits of functions, the crime of intentional destruction of property will change to deliberately make others property losses suffered by the crime, whether it is the destruction of a word for what broad interpretation, high into a low stock trading behaviors are difficult to destroy a word culvert. Here, there is a

In accordance with general public language habits, thus has the predictability of law problems. Quan and Professor Zhang Mingkai did not agree with my view, pointed out: " whether high into a low stock trading evaluation is destroyed, will need to narrow the fact standard, standard facts to close, and the two together to consider things. When high into a low stock trading leads others to suffer the large amount of property loss ( loses its value), the provisions of the criminal law deliberately damaged property crime is to protect others property from loss (to protect the value of the property of others), it is necessary to make the property of others will destroy the interpretation ( stock) value decreased or loss behavior." Quan Yao

In this argument, the essence of Professor Zhang Mingkai once again stressed the importance of things, affirmed the law against the results. However, the essence of which is the result of the. Then, the nature of the behavior in where? in such a way, it is easy to fall into the blame. Interpretation on substance repeatedly show "essence" the banner banner, it seems a, as well as demons. In fact, the problem is not so simple. We can see the judge in accordance with this substance to explain is how high into a low stock trading behavior explanation for the destruction of property and the crime of ": in the value of the property to reduce or lose the essence is the intentional destruction of property. In this case, the defendant ZhuMou use high into a low stock trading method reduce the market value of stock, actually make as property on behalf of the stock loss of part of the value, this is the destruction of property of others behavior." The value of the property to reduce or lose is the essential feature of intentional destruction of property that is correct, but this is only the crime of intentional destruction of property results but not behavioral characteristics. Thus the backstepping anything that causes the value of the property loss is the destruction of property, which is a result of backward behavior logic method, if left unchecked, will draw the wrong conclusion. The correct statement should be: take destroy property

The value of the property loss is the essential feature of crime of intentional damage to property. Therefore, in the criminal law clearly on the behavior characteristics are described in results, characteristics of behavior is a violation of logical proof.

The 3 clauses of concurrence from selection

The concurrence of articles of law is a theoretical distinction between crime from the article analysis tool, which is different from the imagination of concurrence. The imaginative joinder of crimes of competing, the imaginative joinder of offenses should be from a fault principle. But according to the different types of overlap of articles of law, shall break. Especially in the special law and common law concurrence circumstances, except as expressly provided by law, should be the priority of special law in common law principles. However, according to the priority of special law in common law applicable law, sometimes difficult to achieve substantive justice. In this regard, can change by weight method is better than the light of the principle of the law of ? For this problem, the essence of interpretation is positive, which made in accordance with the law or judicial interpretation should be a crime to crime, in accordance with the criminal law and judicial interpretation to the light to heavy behaviour at.

Concurrence between special law and common law between China's "criminal law" the provisions of article 266 of the fraud and financial fraud. Judicial interpretation of a variety of fraud provisions of different amount standards. Common fraud to 2 thousand yuan as the starting point of punishment, bills fraud, financial fraud, credit card fraud in 5000 yuan for the starting point of punishment, loan fraud, insurance fraud to 1 million for the starting point of punishment. Then, the perpetrator of financial fraud amount does not reach the financial fraud criminal starting point but have reached the common fraud conviction, this ability to ordinary fraud punishment? this, Professor Zhang Mingkai think should be recognized as ordinary fraud. This is obviously a substantive theory of interpretation, the reason is this: "say from whole, financial fraud is actually more fraud is worse than ordinary crime, regardless of profit is from the law against perspective, or from the provisions of criminal law to consider, can get out of this. So, to adopt other methods for 2000 yuan with fraud theory

Office, and for obtaining credit or insurance, or the use of financial instruments, such as credit card forgery fraud 2000 yuan of above have not reached 5000 yuan, but not be punished for the crime of criminal law, fairness and justice against the." Quan Wu here relates to criminal law to understand the legislative purpose of fraud and financial fraud is divided into the general law and special law. I think, and not from the law that financial fraud than ordinary fraud is more serious conclusion. The different people will have different meanings. In this case, according to the value judgment of Renvoi conviction, the rationality is extremely suspicious.

In addition, China's "criminal law" provisions of article 236th of the crime of rape, including having sexual intercourse with a minor type rape. While the "criminal law" article 360 provides young young girl crime, prostitution young girl is a special kind of fornication with an underage girl, about the relationship between the crime of rape and prostitution of statutory crime, there are different views in the theory of criminal law. For example, Chinese scholars from the object of the crime of rape is sexual consent capacity of young girls, and given a statutory crime of statutory is sexual consent capacity, so that the two crimes due to different object of crime shows mutex relationship. Quan ¬ of course, general or special law and common law that exists between the two crimes of competition and cooperation. But from the two crime penalty, maximum statutory penalty given statutory crime is 15 years, and the crime of rape has the statutory aggravating reasons, more than 10 years imprisonment, life imprisonment or death. In this case, if the young young girl has "criminal law" article 236 reason of punishment increased provisions, whether with the crime of rape be sentenced to life imprisonment or death? This,

Professor Zhang Mingkai's answer is in the affirmative, pointed out: "(in this case) although the law does not expressly conviction according to the provisions of general clause and sentence, but have no provisions, and according to the special clause conviction not suiting punishment to crime, in accordance with the law and in the light of the principle of law conviction." Quan Jin this is a heavier choice, selected according to the principle of suiting punishment to crime is still a substantial standard. In fact, given a precocious and carnal knowledge of a child which is more important still is a judgment of value. Given a young girl is in the form of carnal knowledge of a child prostitution, from the perspective of the purpose of making profit, from the angle that is a kind of transaction, so in any case, the nature of young young girl behavior to light in the carnal knowledge of a child. Even if the law from the victim agreed terms, in the case of young young girl, young girl with the fact the sexual consent capacity, and in the case of carnal knowledge of a child, young girls did not in fact sexual consent capacity. But whether it is in fact a sexual consent capacity or not agree

Ability, are invalid in law, so in the law had no sexual consent capacity is the common, Co opetition relationship is built on this basis. The criminal law will be given additional charges of statutory provisions, lighter punishment, criminal evaluation on properties that young young girl light in the carnal knowledge of a child. So, why not aggravated punishment for prostitution in light of carnal knowledge of a child, has aggravated punishment for prostitution young girl is heavier than the statutory rape? according to the formal interpretation theory, special law and common law concurrence of circumstances, in any case should be in accordance with the special law is superior to common law principles applicable law, and not according to the personal value judgment of law were severely.

Four

Formal interpretation between theory and substantive theory, is actually the refraction principle of legality and social harmfulness theory argument to explain on, its special background is China's 1997 years the criminal law principle of legality and the consequent of our criminal law knowledge of the contemporary transition. We can see the essence of the theory, theory of resource is explained mainly from the Soviet Union and the theory of social harmfulness localization and the substantive crime from theory in japan. The scholars of our country legal interest concept as the intermediary, the two subtly grafted together, so that the essence of the interpretation in judicial practice in an academic attitude, accepted by the judicial practice, and exerted a great influence. Therefore, the critical interpretation on substance, must begin from theory of social harm has been leading in china.

China's criminal law and criminal law knowledge are introduced from the Soviet Union in twentieth Century, 50 years, the interpretation of criminal law is no exception. Russian scholars pointed out in regard to the interpretation of criminal law, : "in the criminal law interpretation, often political in some principle premise, some methods for its. These bourgeois jurists, is the form of legal methods, the interpretation of criminal law science refers to legal method -- the dialectical materialism method, has the difference principle, explain the Soviet Science of criminal law, is based on strict adherence to the socialist legal system, its focus not only in the legal text to clarify, and explain social content, and that the criminal law is not immutable and frozen theorem, but in the development of." Quan Ying in the above discussion, the scholars of the bourgeoisie legal interpretation method known as the form of legal method. This

Law method, is refers to the formal interpretation in the very great degree. And explain the method advocated by the Soviet Union is called dialectic materialism, is the dialectical materialism. Although the Soviet Union scholars claim that legal interpretation should be based on strict adherence to the socialist legal system as a prerequisite, but its focus not only in the legal text elucidation and interpretation, in its social content, which is actually a substantive theory.

It should be noted that, in the interpretation of the law on substantive and the Soviet Russian criminal law is not closely associated with implementing the principle of legality. The Russian penal code class dictatorship political needs based on, in the criminal law retains the analogy system, so for those criminal law does not expressly provided, but is harmful to the society in fact is thought to be acts of criminal punishment. Therefore, 1926 years of Soviet penal code article 7 established the substantive concept of crime. Can say, do not suffer the crime criminal law essence concept oriented constraints, substantive legal thinking method as the Russian criminal law through provides the legal basis. Opposite form concept and nature of crime concept and the origin of the opposition, is the method of legal substantive form and the legal doctrine. Therefore, a Russian scholars pointed out: " Soviet criminal law, on one hand firmly rejected the penal code provision structure all uncertain narratives, but also against the norms of criminal law as a legal form and a bar type. Method and the form of law to criminal law in essence, class and political attitude is not compatible." The essence of Marxism, on the legal provisions in the law on substantive interpretation and application of the law and substantive, reflect the impact of legal nihilism in Soviet Socialist Legal Construction in a certain extent.

China's introduction of Russian Criminal Law Science in the beginning of twentieth Century 50 's method, but also introduces the legal essence of Marxist theory. In Chinese harsh political reality, the legal nihilism prevailed, the socialist legal system has been completely abandoned, this is from 1957 to 1979 years between criminal law's fate. Promulgated by 1979 Criminal Law, our country enters a law era. Of course, because of historical inertia, in the 1979 years of criminal law exists inevitably influence of the Soviet Union in the science of criminal law substantive theory of law methodology. For example, in 1979, "criminal law" the provisions of article 10 is the essence of the concept of crime, our country scholars believe that the essence of the concept of the crime of exposing the harmfulness of the crime of class and to the country, people, society; class form it with the bourgeois concept of crime in the criminal law is in the form of a crime characteristics of cover up the crime essence is fundamentally different. Especially in 1979, "criminal law" provisions of article 79 of the analogy system, not on the criminal law expressly conduct can also aid

The provisions of the most similar conviction sentencing, fully demonstrated the value of the legal substantive criminal law of 1979 has.

In the science of criminal law substantive theory of law to the social harmfulness theory as its theoretical form, social harmfulness is the essential feature of a crime, is the essential feature of crime, the social harmfulness theory in criminal law. It should be said, in the rule of law is not perfect, provides a substantial judgment according to the social harmfulness as the judicial activities of conviction, so that those who did not have social harmfulness behavior out of the concept of crime, has some historical effects. However, the social harmfulness is a lack of standard of value judgment. If the social harmfulness is above the law, will inevitably cause great impact on the rule of law. Especially our country 1997 the criminal law the principle of legality, a behavior only in the criminal law has stipulated the conditions, in order to conviction in accordance with the law execution, the law does not expressly provided, shall not be convicted or punished. In this case, Chinese scholars keen to discover the contradiction between social harmfulness theory and the principle of legality

And conflict. Duan Rong social harmfulness theory provides a substantive standards, and advocates the principle of legality is one kind of form standard, how to handle the relationship between the two is a problem worthy of study. It should be pointed out, this is in China's criminal law principle of legality, Chinese scholars began to question the theory of social harm. Since then, Chinese scholar Professor Ruan Qilin clearly put forward the principle of legality in after confirmation, the interpretation of criminal law from the substantive theory to interpretation on form transformation, pointed out: "the principle of a legally prescribed punishment establishment, will also explain the methodology of criminal law leads to the transformation from the real explanation, pay attention to form. Under the principle of legality, criminal form things will be in the first, a leading position. The first is the existence of criminal law form of crime, the criminal law specific provisions explicitly provisions should be subject to penalty punishment. Without a law, even the monstrous evil, nor the legal sense of the crime. Therefore, the formal definition, legal characteristics and commit crime

Statutory crime will become the primary problem." Duan Suo

It should be said, the view of Professor Runzilin is correct, it shows that for the principle of legality of law does not expressly provided the behavior of the crime, which is the basic form of interpretation standpoint. Can say, explanation on the form to achieve the repulsive behavior through the form elements of the law will no express provision in the crime. For example, Professor Liu Yanhong pointed out in the perspective of Qi Lin Ruan professor's : "this kind of view is obviously one-sided understanding of the principle of legality is the conclusion, it sees only the statutory law in form side, while ignoring the appropriate substantive penalty regulations side; sees only the form of crime principle the concept has the function and principle of legality, ignored the essential concept of crime also has the legal principle of crime and punishment. The essence of the interpretation of criminal law, we can realize the only serious law behavior can be explained in the criminal circle, in order to realize the mechanism of our country's "criminal law" the crime of article 13 but some of the provisions of." Duan Yao

The above discussion will be substantial side of legality for the understanding of the social harmfulness, and the social harm nature side as the essential concept of crime according to the. I think this is the principle of legality of the substantive aspect of misunderstanding. As mentioned before, the statutory form side mainly restrict judicial power, and the essence of the principle of legality is the main side of limited legislative power, so as to ensure the justice of criminal law. If this understanding is correct, then according to the real side of the principle of legality, the provisions of the criminal law itself has clear and appropriate has reflected the essence of justice. Therefore, the judicial organs in accordance with the form side of the principle of legality crime, behoove has social harmfulness in essence. However, Professor Liu Yanhong think that the side according to the form of the principle of legality is the form of crime, but also through the substantial side to the crime punishment legal principle to exclude no serious against the interests of behavior, so that the substantive crime. Thus, the substantial side of legal principle of crime and punishment is not the legislative power limit, and become the exercise of jurisdiction entity security. Obviously, the principle of legality

Understanding its meaning does not meet the quality side.

Not only that, Professor Liu Yanhong also judicial function on the principle of a legally prescribed punishment for excessive interpretation. In fact, for the administration of justice, the principle of legality of the spirit, is no crime without law. As for the legal behavior in the judicial process is really guilty, this is not the legal principle of crime and punishment function. Indeed, by the substantial side advocate legal principle of crime and punishment, the criminal law about the crime substantive regulations with clear and justifiable, meet the requirements of the substantive justice principle of legality to some extent. But, as mentioned before, that is the legislative power limit. In judicial activities, form side of the principle of legality as the essential ingredient based behavior, even does not have the substantive illegality, should also be excluded by the substantive illegality, and this and the legal principle of crime and punishment are not contradictory, but it is not itself the legal principle of crime and punishment function. But Professor Liu Yanhong has given the legal principle of crime and punishment with the double function of ; one is the law does not expressly provided by the act

The side out of the circle of crime; on the other hand law expressly for the behavior through the substantial side, there will be no serious violations of law behavior out of the circle of crime. This kind of principle of legality of understanding is not in accordance with the principle of legality intention, nor has the possibility of realization.

More important is, through the substantial side to form the side of the principle of legality, thus affecting the principle of legality, the limit function of normal play. Especially the constitutive elements of crime and promote open, form side Duan Wu even eliminate the crime punishment legal principle role. For example, Professor Liu Yanhong on the legal principle of crime and punishment in the form of side made the following criticism: " form and legality as the form principle over minutes to form the rule of law programs free, away from the value of law, especially the legislation is lack of legislation limiting jurisdiction function, easy to make the criminal law to become the rulers carried out their will, the unjust rule for strong national legal form of interference with normal citizens, legal. Therefore, the principle of legality form and its constitution theory advocated, behoove by the potential dangers of the people

Concerns and criticism of the theory."

The form of the legal principle of crime and punishment of criticism, if I understand not wrong, is the form side of principle of legality of the criticisms, it is based on the misunderstanding. The legal principle of crime and punishment strictly no crime without law boundary, to restrict judicial power, it is the guarantee of the individual rights and freedoms of citizens, how likely is free from the law of value? form as the legislative power limit itself is not the legal principle of crime and punishment side. If in accordance with the above logic, formal side of the principle of legality has no legislative power restrictions, free value so far away from the law. Then, the substantial side of the principle of legality is not to restrict judicial right, whether the value of freedom as far away from the law? this argument is clearly untenable. In the substantial side substance to explain this to the crime punishment legal principle to form side and the legal principle of crime and punishment. The praise he's point of view, the essence of the principle of legality is equivalent to the side of social harm, which would have been in conflict with the principle of legality. Social harm instead in the name of the substantial side of the legal principle of crime and punishment become the

Meaning of the principle of legality. But the contradiction between form side of the conflict between the principle of legality and the social harmfulness is converted to the principle of legality and real side. The essence of the principle of legality in the side than the formal side more legitimacy thought leadership, form rationality legality principle stand sadly digestion. While the substantive interpretation theory is based on the social harmfulness as its basis, the judge can be revealed from the following conclusion: professor Liu Yanhong's "principle of legality content determines the need for the explanation of the essence, the crime punishment legal principle although is embodied in the forms of rationality, but the rationality also contains substantial side this is the entity justice. Prohibition of improper punishment or penalty behavior, legitimate or crime, it is to emphasize the criminal legal crime must have substantial rationality, in judging whether a behavior crime scope, substantive aspects to find according to, and substantial rationality is closely linked with the social harmfulness, according to the substantial rationality social harmfulness theory to guide the specific application of the crime in the specific provisions of criminal law interpretation is necessary. Similarly, only to adapt to explain, and the principle of legality of the substantive aspect of the content." Duan Jin thus, social harmfulness is the core of the theory of interpretation, the so-called punishment necessity is according to the social harmfulness to judge. Therefore, get rid of substantive theory to the theory of social harm thoroughly criticizing.

I am in the "social harmfulness theory: a reflective review", the social harmfulness theory of critical reflection, put forward the concept of social annotation harmfulness of criminal law, is also the interpretation of criminal law field. At the same time, I propose to introduce a meaningful concept: Yi law and law violations, thus completed from the social harmfulness of benefit to law against. I still insist on this view, however, was in the four elements crime constitution theory framework, between the principle of legality and law against the logic relationship failed to fully developed. This theoretical problem, conversion until four elements crime constitution theory and the three class of the system of criminal theory to have the opportunity to further explore. In particular system status of law in the three levels of crime theory, I think it should be treated with caution.

It should be pointed out that, in China's criminal law scholars advocate the powerful theory of legal interest is Professor Zhang Mingkai, Professor Zhang Mingkai in German and Japanese criminal theory and China's traditional criminal law theory to get through, trying to learn from the Soviet Russian Criminal Law of Germany and Japanese criminal law science discourse conversion. In the relationship between the theory and the social harmfulness and the law against the time, Professor Zhang Mingkai pointed out: " from the criminal law theory of our country current situation, is generally believed that the social harmfulness is the essence attribute of crime, social harm and criminal essence of infringement to the legal interests, the social harm is roughly on the essence of illegality, in the theory of Chinese criminal law, illegal illegal means only the form, and law and social harmfulness is unified. Therefore, if different views about the nature of the crime and the illegal substance into our criminal law theory to consider, in fact is the debate about the social harmfulness is the essence of crime." Ye looks from above discussion, Professor Zhang Mingkai is the social harm and damage to the interests of law equal, at the same time that the agency

Will the harmfulness of crime is in German and Japanese three class on the illegal system, this judgment is correct, because the law is in a form a substantial judgment elements should be of later. But Professor Zhang Mingkai also stressed that the interpretation of the law on the benefit function, pointed out: " interpretation of the law on the benefit function is defined as a crime, Yi has explained elements of target. That constitute the interpretation elements of the crime, must make the crime behavior is a violation of the provisions of the criminal law and the criminal law to protect the interests, so that the provisions of the criminal law of the crime, the provisions of the objectives to be achieved." Ye Shi

Professor Zhang Mingkai said in the statement of the constitutive elements of crime is tenable condition sense in crime. In this context, emphasizing the interpretation function benefits perhaps the problem is. Because the constitution of crime, is China's traditional four elements, four elements exist in between is plane instead of rank relations. Therefore, as long as it meets the constitutive elements of the crime behavior is a crime, and the crime must have damage to the interests of law, law against this sense is the essence of crime. But Professor Zhang Mingkai in the three class of the system of criminal theory elements on the meaning of the form of interpretation and explanation of the essence of competition, and emphasizes the legal interest of constitution interpretation of significance. In this case, substantive theory is in essence the important conditions constituting a crime theory and substantive theory level to start. The principle of legality and social harmfulness struggle was in the name of the form of crime theory and the crime theory of the essence of the dispute are discussed. Japanese scholar Ootani Mi to form the crime theory and the crime theory of the essence for the following discussion, pointed out: " that elements of the independent function, the general social ideas as the basis, will

Elements of type to grasp the theory of crime, often referred to as the form of crime. Substantive criminal theory of forms of crime theory criticism, as a form of Crime Center crime setting or the type of content is unknown, therefore, in the form of crime, the pursuit of the scope of punishment to safeguard human rights protect the interests of the people, difficult to identify, in favor of penalty regulations explain especially constitution interpretation last, should from the rationality and necessity of punishment view, in other words, should from the penalty of this essential point to. According to this view, the criminal law is the code of conduct, but should be more for the referee to judge the regulated objects, which is nothing more than to import substantial penalty judgment standard. Therefore, principle of strict interpretation of the legal principle of crime and punishment in criminal law the principle of explicit or not important, should start from the necessity of punishment and reasonable position, carry out substantive interpretation of criminal laws and regulations or elements."

Professor Ootani Mi claims to be forms of crime, and the essence of the theory of crime from Professor Maeda Masahide. In fact, the form of crime theory and the crime theory of the essence is the main composition relationship between elements and Illegality: is constitution of crime and the illegal phase separation in the form, the elements in the essence of judgment, the judgment of illegality, so that elements of the behavioral type; in. Elements in the punishment is necessary substantive illegality judgment, so that elements of the act. In the constituent elements and the form and substance of the constitution, Professor Maeda Masahide pointed out: elements to consider in the truth "became the first problem is the illegality. As previously mentioned, significant differences about the relationship between the two views there are two positions: will the legal principle of crime and punishment as a form of certainty, the elements of thought and illegal judgment phase separation purely objective description of behavior type (framework) tradition

Field; substantive understanding crime types and elements for violations of the type of position. The former is to pay attention to elements of the 'express what behavior punished function ( the legal principle of crime and punishment function) ' views as the foundation, that the Constitution by the objective, forms, records and worthless. Therefore in the essential elements of course does not contain normative or subjective thing, even should the constitution, it is accord with the frame form, so the establishment of a crime or not cannot do too much description. In contrast, understood as elements of illegal type of view that constitution and law in principle no different. Should be as will only type of illegal behavior of the elements of the act, in principle is of course become illegal behavior." 

Thus, the form of constitution theory and theory of requirements for real, and not want to substantive law against judgement on the other, but substantial judgment before a fight in the illegality requirement on or after. Forms of elements of classical criminal theory system founder Behring advocated, Behring emphasizes the elements for the crime punishment legal principle limit function of the reality of the role. As China scholars have pointed out: "(Behring) argued that only with should the outline of criminal type can be punished, the crime type is composed of elements should be. Behavior does not have this feature, even with illegality and responsibility, behavior of people still can not be investigated for criminal responsibility, this is Behring constitute formal elements theory. Obviously, Bailyn maintained a fact and formal elements in order to achieve the objective elements of composition by trying to clear requirements, the final of the principle of legality and mapping establish exclusiveness

System." 

But the constitution essence is the essence of law against the judgment in the name of the necessity of punishment in elements, resulting in substantial judgment too front problem. Substantial judgment too pre consequences is dispelled the limit function form elements, the elements from the bear out of the form does not have the function of the crime constitution should act to essentially is deemed punishable necessity into the acts of crime function. I think that the principle of legality, the side form a damage.

Notable is, Professor Zhang Mingkai conversion in the criminal law discourse from the criminal law discourse Soviet Russia to Germany and Japan in the process, there is a thinking jumping phenomenon. For example, Professor Zhang Mingkai pointed out: constitute a crime in criminal law

, still must be explained from the essence, so that the criminal law crime really limited in has the serious damage to the interests of law behavior. Because the criminal law is written stipulation crime, but the polysemy of the text, change and edge of fuzzy, decided only according to the literal meaning of words form interpretation of the constitution, will inevitably lead to some does not have the substantive criminal illegality of behavior to recognize for the crime." Ye Wen in this argument, the two concepts: crime . Crime constitution is the constitutive elements of the Russian four elements crime, is refers to the crime

The total vertical conditions. But the constitution refers to the three classes of German and Japanese criminal theory system of elements, the first element of it's crime. For elements should of course have substantive interpretation of a crime, otherwise it will make its form and lead to some does not have the substantive criminal illegality of behavior to recognize for the crime. But the Constitution do not necessarily carry out substantive interpretation, interpretation of the elements of form, and the essence of the illegality judgement in class. In this case, how to draw the conclusion: the elements of form interpretation will inevitably lead to some does not have the substantive criminal illegality of behavior to recognize for the crime? obviously negative, Zhang Mingkai appeared professor is the constitutive elements of crime in form explain consequences onto the constituent elements of the formal interpretation logic is hard, in the.

In the three class of the system of criminal theory, substantive judgment is on the elements of class or on the illegal sex, this is can continue to argue. I do not oppose the substantial elements, but I think that this substance is substantially a factual and non substantive value. Substantive nature of reality and value is completely different. To kill as an example, to explain the form of killing refers to the killing is defined as all the behavior of cause of death. Understanding such forms of murder, the murder of wide scope. The objective imputation, substantive restrictions on murder, this is the essence of a fact, but the essence of the fact is explained as the premise. And the value of substantive homicide is defined as the damage to the interests of judgment, although in fact have homicide substantial elements of class, but the existence of ground for elimination of misfeasance in law classes, such as self-defense murder, due to the lack of damage to the interests of law and crime. Therefore, damage to the interests of law judgment should be illegal order

Layer. The theory of legal interest is the German scholar Lester carry forward, Lester thinks, the legal protection of the legal interests (Rechtsgueter) , law is legitimate. Ye Wu Lester proposed as legal interest of criminal law, the law of value for. But Lester thinks at the same time, the law is an illegal judgment problem, he will be substantial illegality is defined as refers to harm society ( antisocial behavior), pointed out: "the illegal behavior is an important benefit to the legal protection of individual or collective violations, sometimes is a kind of legal interests of the damage or harm. The heavy China law 2010 fourth

To protect the interests of the priority of law. Of the protected by law to define and rose to the vital interests of interests, interests contradiction, conflict of law can not be completely excluded. A law last and highest task human common life goal, this contradiction, conflict sacrifice value of low interest, if only for this can maintain the value of high interest. Accordingly, the following conclusions can be drawn: only when it is in violation of the provisions of the common life of law and order, destruction or damage law profit only in the entity law, the legal interests of the entity is illegal, if the interest is law and order to the common human and life adaptation."

Law against the judgment is a judgment of value, is also a kind of substantive illegality judgment, it should be restricted elements of judgment. Only has the essential ingredient of the essence, to judge, otherwise it will jeopardize the principle of legality.

Conclusion

Formal rationality of the principle of legality theory provided ideological resources for the formal interpretation, but also give the theoretical support for the knowledge of criminal law in china. Only in this way can and substantive theory to clarify their academic positions and assignment theory boundary of each other, school dispute between and formed in the two aspects of thought and knowledge and interpretation on substance.

 

 

 

 

 

 

 

 

 

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① see Chen Xingliang: "to struggle in school of criminal law", "law of load" in 2010 first

② see Liu Yanhong: "substantive criminal law", Renmin University of China press, 2009 Edition; Deng Zibin: "critical" view Chinese substantive criminal law, publishing house of law 2009 edition.

To see Liang Genlin: "on the criminal law's applicable interpretation", "law" in 2004 Chinese carrier phase 3 . In addition, Professor Liang Genlin in this paper also touches upon a compromise theory

Point of view.

④ see Xu Hao: "the basic stand of criminal law interpretation -- on the view of" interpretation of legal argumentation of pragmatism, load "Oriental Law" in 2008 sixth.

And see Chen Xingliang: "case of criminal law" (Volume I), Renmin University of China press, 2009 edition, thirtieth pages.

The Li Lizhong, Wu Xuebin editor: "criminal law" the new trend -- on Professor Zhang Mingkai's academic view, Peking University press, 2008 edition, page sixty-seventh.

⑦ see (Japan): "criminal law of Otsuka Ren (general)" (Third Edition), translated by Feng Jun, Renmin University of China press, 2007 edition, page Seventy-eighth - 79 .

See Su Caixia: "and carry out" on the establishment of the substantial interpretation of criminal law, "" law of load in 2007 second. Ginseng

To see detailed: "to establish a theory of legal interpretation of the" Tower of Babel "-- to the substantive interpretation of criminal law theory", "comments contained Chen Xingliang editor:" criminal law volume 26 , Peking University

Press 2010 edition, page seventy-second.

10. 6, sixty-seventh pages.

Before the 11.

12 see (Law) Montesquieu: "the spirit of law", the first book, Zhang Yan, the commercial press 1961 edition, page twelfth.

13 see (Italy) Beccaria: "on crime and punishment", the yellow wind, Chinese encyclopedia press 1993 edition, page thirteenth.

14 see (DE) Claus Roque Xin: "general German criminal law" (first volumes), translated by Wang Shizhou, Law Press 2005 edition, eighty-fourth pages 85 .

15 (Italy) Du Li Ao. Padovani: "principle of criminal law of Italy" (comment version), translated by Chen Zhonglin, Renmin University of China press, 2004, pp. 14 .

16 see Chen Zhonglin: "Italy criminal law compendium", Renmin University of China press 1999 edition, page eleventh.

17 Chen Zhonglin: "from the external form and inherent essence pursuit -- the value conflict the crime punishment legal principle implication and China's legislative choice", "modern law" in 1997, carrier phase 1.

18. 17.

19 see before 17

20 see Chen Zhonglin: "criminal law" scattered set, Law Press, 2003 edition, page thirty-seventh.

21 see Wang Kaishi: "explain" criminal law China procuratorial press, 2008 edition, page 192nd.

22. 7, seventieth - 71 pages.

23. 7, page seventy-first.

24 (day) had Genwei Yan: "basic" criminal law, Li Hong, Law Press, 2005 edition, page twelfth.

The principle of prohibition of retroactivity, also known as the forbidden afterwards method principle, simultaneously has the judicial power and legislative power limit.

25. 15, page sixteenth.

26. 16, page twenty-fourth.

27. 24, page fifteenth.

29 Li Haidong editor: "criminal law in Japan '(under)", Law Press, Japan Chinese statute hall press 1999 edition, thirty-second pages, the book chapter 14 Maeda Masahide Zhang Mingkai wrote.

30 Zhang Mingkai: "explain" legal principle of crime and punishment and criminal law, Peking University press, 2009 edition, page sixty-eighth.

31. 30, sixty-eighth pages.

32 anonymous: "don't the punishment system of Fu solution", "green building" pillow series load.

33. 30, page sixty-eighth.

34. 30, page twenty-seventh.

35. 30, forty-sixth - more.

36 Zhang Mingkai: "to explain the principle of" criminal law, Renmin University of China press, 2004 edition, page ninth.

The 37 interpretation on substance often think, substantive interpretation of criminal law has the necessity of punishment with crime and will not have the necessity of punishment to crime two such function,

Lead II, 237th pages 238 page.

38 Su Caixia: "study" the legislative interpretation of criminal law in China's position, load "Journal of Zhejiang University (PHILOSOPHY AND SOCIAL SCIENCES EDITION) in 2010 third.

39 see Tang Jiyao: "in fact, value and choice: on the" interpretation of legislation of Chinese criminal law, Chinese and foreign law "carrier" in 2009 sixth.

Before the 40.

41. 14, page eighty-sixth.

42 (DE) Hans Heinrich. Yesek, Thomas, Wei Ghent: "German criminal law textbook", translated by Xu Jiusheng, Chinese legal press, 2001 edition, page 197 .

43 (Germany). Wessels Johannes: "the general provisions of criminal law", translated by Li Changke, Law Press 2008 edition page twenty-fourth.

44 see Chen Jinzhao: "literal interpretation: priority" legal method "the humanities", set in 2005 sixth.

 

 

 

 

 

45 Su Caixia: "interpretation of the criminal law of the load level and application", "Chinese law" in 2008 fifth.

The 46 leading group.

47 (day) Maeda Masahide: "general provisions of criminal law lectures" (Fourth Edition), the Japanese version, University of Tokyo press, 2001 edition, page seventy-fourth.

48. 30, page sixty-ninth.

49 see Zhang Mingkai: "criminal law ten in the research of the relationship between the" load "Tribune", in 2006 second.

50 see Zhang Mingkai: "the basic position of" criminal law Chinese legal press, 2002 edition, page 117th.

Lead to, seventy-third - 74 pages.

 

52 Wang Zuofu editor: "criminal law practice research" (in) Third Edition, China Fangzheng press, 2007 edition, page 1083rd.

53 Zhang Mingkai: "criminal law" (Third Edition), publishing house of law 2007 edition, page 717th.

The 54 leading group.

55. 42, page 191st.

The 56 leading group.

57 Liu Yanhong: "explain" to the substantive criminal law, Peking University press, 2009 edition, page 222nd.

58. 53, page 756th.

59. 52, page 1183rd.

60 Liu Mingxiang: "comparative study" property crime, China University of Political Science and Law press, 2001 edition, page 418th 420.

61 (Germany). Wessels Johannes: "the general provisions of criminal law", translated by Li Changke, Law Press 2008 edition, page twenty-eighth.

62. 30, page 210th.

63 Chen Xingliang: "the relationship of form and essence: reflective criminal law review", "law of load" in 2008 sixth.

64. 30, page 212nd.

65 he editor: "economy, property crime selected case", Shanghai people's publishing house, 2008 edition, page 416th 417.

66 Zhang Mingkai: "research" fraud and financial fraud, Tsinghua University press, 2006 edition, page 342nd - 343.

67 see car Hao: "on the relationship between crime and the crime of rape of young young girl -- Application of" on overlap of articles of law and imaginative jointer of offenses, load "jurisprudence" in 2010 second.

68 Zhang Mingkai: "relationship" given a statutory crime and fornication with an underage girl type rape, load "people's Procuratorate" in 2009 seventeenth.

Editor in chief of all Union Institute of law 69 Soviet Ministry of Justice: "the general provisions of criminal law" (the book), translated by Peng Zhongwen, Jiro press 1950 edition, page 271st.

70 (Su) B. M. contract is: "and left some problems in formulating the draft criminal code" Soviet Soviet criminal law, hole Zhao, loading chamber of Renmin University of China: "criminal law compiled Soviet criminal law the choice" (first series) Renmin University of China press 1955 edition, fifth.

71 see Gao Mingxuan pregnant: "criminal law of the people's Republic and birth", Law Press 1981 edition, page thirty-sixth.

 

72 see Fan Wen: "the legal and social harmfulness of conflict -- and an analysis of the new article thirteenth of the criminal law on the crime of the concept of" set "in 1998," the science of Law No. 1 .

73 Qi Lin Ruan: "new topic put forward" new criminal law "law" in 1997, carrier phase 5 . Then, change the view of Professor Qi Lin Ruan, that the principle of legality demands form the explanation of the exclusion on interpretation is clearly one-sided. For example, in the "restricted the kidnapping crime legal punishment of the crime of kidnapping as" ( load "law" in 2002 second period) the article pointed out: specific criminal law the crime of kidnapping from our model, analysis only from the legal form of kidnapping crime factor is wrong. Therefore, Chinese scholars think, Qi Lin Ruan professor has corrected his interpretation on form position, can't regard him as a formal interpretation theory. See Zhou Xiang: "interpretation on form and interpretation on substance battle", "law" load

Phase 3 . I think, if the interpretation on form as formal interpretation of the law, only without substantial explanation, Professor Ruan Qilin are really changed his position. From the formal interpretation into a substantive theory. But if the interpretation on form do not is not substantive interpretation, but that in the form of re interpretation, then, Ruan Qilinjiao

Teaching explanation just from the one-sided interpretation on form into a comprehensive explanation on the form. Unless the professor Ruan Qilin completely deny the necessity forms of explanation, can make the essence of interpretation of law can be straight, said Professor Ruan Qilin really from the formal interpretation into a substantive theory. This explanation is necessary, is to clarify the interpretation on form of misunderstanding.

74. 2, 147th - 148 pages.

75. 30, page sixty-second.

76 see Liu Yanhong: "elements" constitute the theoretical research of open crime, China University of Political Science and Law press, 2002 edition.

77. 2, sixty-eighth pages.

78 Liu Yanhong: "dialectical" theory of social harmfulness, load "China law" in 2002 second.

79 Chen Xingliang: "social harmfulness theory: a rethinking of the" carrier "," law of 2000 first period.

80 Zhang Mingkai: "interest theory" (2003 Edition) China University of Political Science and Law press 2003 edition, page 273rd.

81. 80, page 216th.

82 (day) the Big Valley Real: "lecture on criminal law pandect" (new edition Second Edition), Li Hong, Renmin University of China press, 2008 edition, page eighty-seventh - 88 .

83 (day) Maeda Masahide: "the modern society and the essence of crime" (Japanese version), University of Tokyo press, 1992 edition, page forty-seventh.

84 Shao Donghao: "clearly from the plaintext to: meaning words change rule of Law -- the Beling constitutive theories", "foreign law" in 2010, carrier phase 2 .

85 Zhang Mingkai: "the basic position of" criminal law China legal press, 2002 edition, page 126th.

86 see (DE) Lester: "the German criminal law textbook" (Revised Version), translated by Xu Jiusheng, Law Press 2006 edition, page sixth.

87. 86, 201st pages.

 

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