Interpretation and the interpretation of criminal law criminal law

Interpretation and the interpretation of criminal law criminal law
We first see in three cases:
Provide service 1, a Nanjing bar owner to organize a group of handsome young man to gay men, the social reaction is very strong. Whether the conviction? There is a similar crimes -- the organization prostitution crime in the criminal law, whether the crime? With the "organization" requirement, the key lies in whether the men to provide sexual services can be interpreted as prostitution. In practice, there are specialized organizations providing services for male female, and also exists the problem.
2, a thief while the owners going out burglary, theft during the master came back, is a 80 year old woman, she stood in the doorway does not capture the no cry for help, the thief act recklessly and care for nobody to collect the valuable things after March off. Should any sin on the thief? Whether the theft? The current criminal law theory that, larceny hold water requires that the perpetrator acquires property is secret, namely the victim knows way property. (theft in the dictionary to explain is the "get" secret using illegal means to) the victim in this case already know. So, according to the current criminal law theory on human behavior can not be the crime of theft. At the same time, can not be forcibly seizes or robbery. However, it is right? The secret to take the property will constitute the crime of theft, openly take money is hard conviction?
3, 13 - year-old Wu should be the 35 year old aunt song request "to help see house". In the evening, Wu in the song of the forced and induced with a sexual relationship. Since then, the song threats and "bribe" means, become aggravated wantonly Wu, six months forced Wu sex 60 times. Originally lively Wu personality began to become depressed, temper also becomes fierce, the psychological impact of the extreme fear. With Wu Mou grew up, he began to run away. However, the song of a step in force. In order to make Wu obediently obedient to him, warning Wu said to reveal to the public in the matter, Wu eventually forced to leave school. This is incest behavior nature bad, the harm is very great also. However, songmou act doesn't constitute the crime of rape is very clear, because the crime of rape victims are female requirements. A crime is relatively close to the crime of child molestation. Whether the song Mouding child molestation? The current criminal law theory that sex is only sex outside, behavior, in this case the song forced Wu is the implementation of the sexual act. So, according to the current criminal law theory, the song can not be the crime of child molestation. ("obscene" interpretation)
The three case leads to a common problem, this is the criminal law interpretation. The interpretation of criminal law is stipulated in the criminal law significance explanation. The interpretation of criminal law, the following three problems is very important: (1) whether the criminal law needs to explain? (2) if the criminal law needs to explain, how to explain? (3) if the criminal is explained, how to judge whether this explanation is reasonable? The first two belong to the interpretation of criminal law, the last one belongs to the interpretation of the criminal law. Because interpretation methods are more familiar with, so tonight I the first and the three two problems with everyone together to discuss. Mainly is the criminal law interpretation.
One, the necessity of interpretation of criminal law
Whether the criminal law needs to explain? There are two diametrically opposite points of view. A kind of viewpoint thinks, legislators can put the criminal law set very clear and specific, thereby eliminating the necessity of interpretation. In judicial application of the criminal law should be like a vending machine, input the law and the facts of the case, the output of legal conclusion -- guilty or innocent. Another view, lawmakers are not gods, expect them to develop a be the pink of perfection of the law can only be unrealistic fantasy, the judiciary to law simple applicable to complicated social life, must make corresponding explanation. I think, the criminal law is the need to explain, the reason can be explained in the following three aspects: (1) of the criminal law makers (legislation); (2) of the criminal law (criminal law text carrier); (3) apply to criminal law (criminal law operation).
(a) makers. The criminal law is enacted by the people, and human reason and ability is limited, so the flaws of criminal law is inevitable. Some defects in words, some defects of the original intention of legislation, to overcome the defect must be interpreted. "The legal interpretation, help to eliminate (or rather reduced) form the shortcomings of legal documents. Through the explanation, can eliminate the wrong or improper use of legal means and methods, to eliminate the shortcomings of legal document writing." As the criminal law ninety-ninth stipulation: "this Law refers to the following, above, below, including the number of." But the criminal law sixty-third stipulation: "the criminals with the provisions of this Law of mitigating circumstances, shall be sentenced to a punishment below the legally prescribed punishment." Since it is the mitigation of punishment, of course, should not include the number of. And as the sixty-ninth stipulation: "before the judgment is pronounced a committed several crimes, except sentenced to life imprisonment and death, should be above the maximum total term following, several sentences, as appropriate, decided to be executed." This is limitative aggravation, not equal to the sum of the sentence, because it is the principle of additivity; cannot equal to the highest penalty punishment in number, because it is equal to the absorption. Obviously, "above", "below" also does not include the number of. This requires correction interpretation. Similarly, the provisions of the criminal law, carrying weapons snatch the crime of robbery. The "weapon" one word is not criminal law academic language, is the need to explain. Spears has great lethality of natural things can be interpreted as a weapon, however, tie, silk stockings can explain in here "weapon"? For example some psycho killer with a tie or silk stockings to kill many people. The court in the trial of criminal cases, often use the word "weapon", mainly from the results in terms of, as long as the behavior in the crime process using something to kill or harm, this kind of thing is called the murder weapon. However, lawmakers use weapons when the word is obviously not from the point of view, but from the thing itself, namely the thing itself is deadly this performance. In this regard, tie, silk stockings may in specific cases is behavior person to kill, injure as tools, but they themselves are not lethal, so don't belong here. "".
(two) carrier. The content of criminal law in the text as the carrier, the expression of criminal law text in common language as the foundation, the language characteristics decide their own criminal law needs to explain. Specifically, the following three aspects:
1, the edge of fuzzy words meaning. The core of the meaning of the word clear, but always to the edge extensions, so that the extension of fuzzy. With the ink phenomenon as an example, a drop of ink onto a piece of rice paper, the central part is black, but more out of the color is more shallow, from black to dark gray, light gray, until pale. Such as the article 122nd of the criminal law, the crime of hijacking ships, cars, ships, cars are the behavioral object. The car, "modern Chinese Dictionary" to explain: "powered by internal combustion engines, mainly in the transportation on the road or the road, there are usually four or more than four rubber tire. Used to carry people or goods." Therefore, our common cars, trucks and buses no doubt belongs to the automobile, however, tractor, track racing, racing, go kart, agricultural autocycle is belongs to the car? (in the remote and backward and inaccessible areas, the tractor is main manned tools, like buses) ships, usually understood to drain water transport, therefore, ocean going ships and fishing boats are vessels, however, used in traffic underdeveloped area or the occurrence of floods, the bamboo raft are ships? (a small bamboo river, the green mountains walk along the banks. This is a wonderful picture. Suddenly, a gang of robbers jumped on a raft, "all listen to me, planning to go to japan!" This hijacking behavior can constitute the hijacking?) This requires us to explain.
2, the ambiguity of words. As the provisions of the third paragraph of article twentieth of the criminal law: "the ongoing assault, murder, robbery, rape, kidnapping and other serious violent crimes endangering personal safety, to take defensive actions, against illegal caused casualties, he shall not bear criminal responsibility." What is the murderer? Murder is murder, intentional injuries to attack others, or damage behavior in general can also be called the violence, such as hitting a slap in the face, kicking a few feet. Whether this paragraph in the general contains also hurt? This may also explain the. And this same and "violence" in criminal law is a word, will be killed, wounded to violence, general damage also belongs to the violence, even slightly beat can be violent. For example, requirements in the robbery, "violence" can include murder, violence crime of endangering safety of flight in the "violence" does not include to kill, and the crime of obstruction of official business in the "violence" is only minor injuries, even the injuries are not included. As above, not through the explanation is not clear about its connotation.
3, change the meaning of a word. The meaning of the words will change with the social development. For example, comrades, refers to the original to struggle for the ideal, the cause of common people, such as the revolutionary comrades, but now in Hongkong, Guangdong and other places for gay comrades reference. Miss, the original is the old rich family servant name for the daughter of the owner, and later extended to call for all young women, and now basically become synonymous with some kind of occupation women. Farmers, laborers, engaged in agricultural production in the country only a short while ago, we call it as "Uncle farmer", but now often say "this one really, but reduce farmers" refers to the vulgar behavior, low quality. Also, to become useless alias. Although none of the above terms in the criminal law, but a similar situation. As the first case of "prostitution", before we explain women to sell their bodies, because in the patriarchal society, men of high social status, women become the plaything. (of course there are women's high status man become the plaything of mother, such as Qin Shihuang Zhao Ji and Wu Zetian are the first, but large-scale sell male physical situation were not) and with the increasing of the social status of women and homosexual behavior in men to provide sexual services, called prostitution had can be accepted by most people. (criminal law is not "written law", not only look through the dictionary to find the meaning, can)
(three) apply to. Apply according to the development and changes of the society and the criminal punishment of the crimes of the objective interpretation. Such as the 1979 Criminal Law of corruption: "the state personnel who take advantage of their office, embezzlement of public property". Corruption of understanding, usually refers to the act of public property, transfer premises, namely organs, units transferred to themselves or others home. However, for national staff will be in business activities or accept in foreign exchange gifts at his office's behavior can be identified as corruption? For example, the case of Chen Xitong. He will accept foreign exchanges gifts on his office. This situation in the previous is not to be treated as a crime. The judiciary considering this situation a lot in practice, the greater harm, think, as long as the exclusion of the state control. So in 1997 the criminal law 394th stipulation: "state functionaries who accept gifts official duties at home or in the foreign exchanges, in accordance with the provisions and not the public," the amount is relatively large, decide the crime of corruption.
The necessity of the interpretation of criminal law can be explained from the other aspects, but the above three points is very important.
Two, the rationality of interpretation of criminal law
Criminal law since the need to explain, it should be explained according to certain method to. The application of criminal law is actually the process of interpretation of criminal law, or is applicable interpretation of criminal procedure. But the interpretation of the results is reasonable, is still a problem to be discussed. At present, the theoretical circle of criminal law is not the lack of explanation, but the lack of judge interpretation standard conclusion is reasonable. Is often said, attack each other, but difficult to reach a consensus. The main reason is that our standards are not unified or no unified standard. However, as everyone knows the importance of standards, such as pleasing is beautiful, the reason lies in the judgment standard is not the same, if the "surrealism" Yang Yuhuan as the standard, then, "Nihilism" Zhao Feiyan can be beauty? And vice versa. For the explanation of criminal law and the rationality of judgment must be standard, but can not judge the beauty that have different standard. Otherwise it is reasonable and that the public, both said that the right woman.
Then the interpretation of the criminal law, rationality, should have what standards? List all is not possible, but I think, the following is very important:
(a) purpose.
Here to explain, is not the objective, is not the intention of the law makers, it is the criminal law's purpose. The criminal law is created by legislators, but once it is created, it has relative independence. The aim of criminal law is to protect law benefit. Legal interest, simply speaking, is the criminal law to protect the interests of. Every article of criminal law is to protect the legal interests, therefore, the reasonableness of interpretation of criminal law, should be the first to see whether it is appropriate to protect should protect law benefit. From the protection of law interpretation cannot think is reasonable.
In second cases, in order to protect the property ownership of theft, the theft of "theft" interpretation of the word should this purpose. The theoretical circle of criminal law will "theft" is interpreted as "secret", is obviously not conducive to protecting the legal interests. Because, harm less than secret stealing openly, and for secret stealing behavior have to be theft punished, why people openly take the possessions of others but not theft? Therefore, both the secret steal or openly, as long as there is no violence, should be interpreted as "theft".
In third cases, the child molestation charges to protect children's rights, of course, would violate the rights of children's sex outside of the sexual assaults, but will be limited to sexual intercourse outside indecency is not able to effectively protect the legal interest. Because of the persecution of children sexual behavior, its harm to children than other than implementation of coital violations, why cannot the punishment? Therefore, should think, the child molestation charges of "obscene" including sex. The caveat here, criminal law in the crime of rape, also have compulsory indecency women sin, therefore, the coercive indecency women in crime of "obscene" does not include rape. Some people say the child molestation charges of indecency does not include rape is based on, however, we know that, in criminal law the same words in different terms and even the same provisions may have different meanings, which is allowed. For example, article 236th of the criminal law of the crime of rape "stress" and the 263rd robbery of "stress" has different connotations, the crime of rape "stress" may contain "threatened to expose privacy", while the robbery crime is not included in the stress. Also, a word and children. Article 236th of the criminal law and the 237th women, refers to the full 14 years of age in women, and 236th in the first paragraph third paragraph: "the rape of women in public places," aggravating circumstances as rape, one of the women both women has reached the age of 14 also included are under 14 years of age, the young girl. So, to sum up, if the victim is female, whether women or young girls, which forced sexual intercourse of rape, molestation of sex outside of the sexual assault; if the victim is a minor man, have sex outside of the sexual assault was obscene, forced sexual intercourse because they do not constitute rape, should also be regarded as obscene.
Look at the crime of false accusation. If the following two conditions in practice, how to handle? (1) against the victim's commitment, (2) false accusation. These two cases on the surface are in line with the requirements of the crime of false accusation, but really constitute crime, we must protect the legal interests from the purpose of analysis. Crime of false accusation of violating the civil rights, democratic rights in our country in fourth criminal law chapter of sin, the protection of the legal interests of citizens' rights of the person, therefore, if there is no right of the person in need of protection, there is no possibility of the establishment of crime of false accusation. The above two cases, one is the behavior of people to give up their rights, one is not available for the protection of personal rights, so can not be considered a crime. Need to pay attention to, in some countries in the criminal law, crime of false accusation stipulated for the activities of the crime of obstruction of justice, and that means the criminal law to protect the legal interests is the normal judicial activities, so the above two situations should be identified as the crime of false accusation, because although there is no infringement of personal rights, but hinders the judicial activities.
Need to pay attention to legal change situation. Such as the 1979 Criminal Law hooliganism, the protection of law it is public order. The 1997 amendments to the criminal code, the rogue crime was decomposed, lewd women which has separate provisions for the crime, in criminal law the fourth chapter, so the protection of law compulsory indecency women crime has become a woman's sexual right. But the theory one copy for the original obscene explanation, such as "dirty dirty abuse women", "women exposed to genital". These apparently did not infringe on women's rights, so don't belong here obscene.
(two) justice
Generalized justice demands for social justice, but also requires the criminal justice, on the one hand, to properly protect society, on the other hand, to be effective in protecting the human rights. Narrow sense of justice only emphasize the human rights protection of criminal law. Here in its narrow sense. Justice requires that criminal law can not explain the beyond the possible meaning of words, to predict the possibility of national cannot exceed.
Can not exceed the possible meaning of words. On the meaning of the text can be expanded to explain, but there must be a limit, edge meaning of text is allowed, but if beyond the edge of the meaning of the text, is not allowed. If the "aircraft" "article 107th of the criminal law in 1979, scholars usually be its expansion to" aircraft ", probably meaning beyond words. Also, the criminal law 240th stipulation of trafficking in women and children, the practice had abducted adult male cases, some people think that it should be the crime. This is not correct, because the meaning of women, children clear, in any case can not be considered to include adult men, some people have this idea, because the women, children explain to others, which is beyond the possible meaning of words. (used to replace the concept of a concept) Moreover, compulsory indecency women, child molestation is to constitute a crime, but for indecency adult male behavior can be recognized as a crime? For example, for sodomy, somebody thinks to should be regarded as crime. We recognize that this violated the national sense of justice and the values, harm is to a certain degree, and that other countries almost without exception will be treated as a crime, but our country's criminal law since the obscene object was limited to women, children, not exceeding the prescribed arbitrarily expanding. (if an implementation, can be the crime of insulting)
To predict the possibility that people can not exceed the. The criminal law is the code of conduct, is used to regulate the national behavior, regulation is the premise of national can realize what is forbidden. If people in any case do not recognize some act in accordance with the law shall be punished, is beyond the possibility of national forecast. Such as the ancient criminal law are disrespectful to sin, is a typical beyond a crime to predict the possibility of national. As stipulated in the criminal law of the crime of hijacking ships, cars, but how to deal with the hijacked train behavior? Some people think that can set up the crime of sabotaging means of transportation. I think it wrong, the damaged transport requirements on the vehicle itself is destroyed, while the hijacked train behavior usually does not destroy the train itself, this interpretation beyond national forecast possibility. Similarly, article 241st of the criminal law provisions in the second paragraph: "those buying abducted women, forcing them to have sex, shall be punished in accordance with the rape conviction". Sexual relations, the narrow sense refers only to coitus, generalized also include coital sexual relations outside, but to have sex only here understood as sex, because sex outside the relationship identified as rape violates the possibility of forecasting demand.
Should pay attention to, for the interpretation of criminal law is justice, not allowed to explain the expansion, as long as the expansion explanation without words meaning beyond the possibility of predicting possible, people can. In 1997 245th of the criminal law crime of housebreaking, invasion is usually interpreted as "unauthorized illegal entering or upon request from unreasonably refused to withdraw", the scholars think that meet the requirements, because intrusion including acts and omissions two. And as the crime of intentional damage to property damage, although a general meaning is the thing itself all or a portion of the destruction, damage, however, we will be extended to "lead the utility of reduction or loss of property" and not beyond the possibility of national forecast. As the practice behavior of the mobile phone into the toilet, others put others worth tens of thousands of birds in a cage, though not to the thing itself is destroyed, but the value for the behavior has been lost. Moreover, rob to robbery with lethal weapon, the weapon usually refers to swords and guns and so on, practice behavior with a syringe filled with SARS virus can be identified as loot robbery? I think it can be, there was no difference in the risk of.
Needs to be pointed out, conflict in the purpose and justice in two cases, emphasizing the justice view is desirable, because it highlights the protection of human rights. For example, article 316th of the criminal law. The subject of crime of breakout is "being held in custody according to law criminals, defendants and criminal suspects", therefore, in principle only in compliance with the statutory procedures and entities for the conditions, it should be considered to be held legally, so, even if is in fact innocent people, also can become the subject of the crime. However, for the innocent people are held and fixed escape does not comply with the requirements of justice, therefore, only for innocent detainees escape behavior, should not constitute a crime of escape.
(three) the overall coordination
The criminal law as a legal text, which is coordinated or should we believe that it is consistent, therefore, for the criminal law explanation must meet the provisions of articles internal coordination and external coordination requirements.
Internal coordination. Such as the crime of false accusation stipulated: "fabricating facts to frame others or intention, make the person subject to criminal investigation, if the circumstances are serious, the" single "fabricated", the fact can be the criminal facts, or can be a general illegal facts, but linked to the back of the "intention to make the person subject to criminal investigation", is false the fact is only limited to the facts of the crime, because the invention of general illegal facts are not enough to make the person subject to criminal investigation. So, for the practice of prostitution in the fabricated others denounced to the judicial organ behavior, can not constitute the crime of false accusation.
External coordination. External coordination includes two kinds of situations:
(1) coordination between specific provisions
As the crime of try every trick to mislead the public, some people think that can contain a cheat, this interpretation from the crime of try every trick to mislead the public itself, not what not harmonious. However, in accordance with the provisions of the criminal law, the maximum penalty general fraud is life imprisonment, the maximum punishment and try every trick to mislead the public diddle property only 10 years in prison. In addition, the general fraud can be transformed into the robbery, but don't try every trick to mislead the public. Therefore, this explanation is not reasonable, try every trick to mislead the public cannot contain diddle property content. As the criminal law 262nd stipulation: "kidnapping minors under the age of 14, from his family or guardian", constitute the crime of kidnapping children. However, the use of theft, robbery and robbery method will take away the children's behavior can be established? We say that the latter is more important, should be punished, the problem is whether including theft, robbery kidnapping or robbery, if we consider the linked article 240th of the criminal law, the problem is easy to solve. The 240th is trafficking in women and children, the "turn" including kidnapping, therefore, crime of kidnapping children in turn can also include theft, robbery and robbery.
(2) coordinating provisions and general provisions
General guidance on the interpretation of specific provisions, so we must be coordinated with the general.
If the provisions of the second paragraph of article 236th of the criminal law: "fornication under the age of fourteen young girls, rape, he shall be given a heavier punishment." It did not specify whether the behavior person knowing each other is the statutory requirements. In January 17, 2003 the Supreme People's Court issued a judicial interpretation, pointed out: the actor is under the age of 14 young girls and their sexual relationship, whether the young girl is voluntary, shall be in accordance with the provisions of the criminal law in the second paragraph 236th, in order to rape conviction and punishment; behavior person did not know each other is under the age of 14 young girls, both sides voluntary sexual relations, causing no serious consequences, the circumstances are obviously minor, was not deemed a crime. Obviously, the judicial interpretation to confirm the carnal knowledge of a child which constitute the crime of rape to know conditions. Why would such a judicial interpretations promulgated? Due to the high court of Liaoning province for a case. This case is as follows: Xu, female, born in May 2, 1989, 13 years old at the time, the height 1.65 meters, weight 60.2 kg. The woman in 2002 February, the "mad woman" net chatting on the Internet, and then meet with people, have sex with six. To identify cases, Xu although only 13 years old, but she is from the Internet and other channels to know a lot about the nature of knowledge, in its to defendant Du Mou letter also said that his hobby is: surfing the Internet, looking for sex. Chatting on the Internet, mainly for sexual content. Xu Mou and the 6 defendants are chatting, rape victim was before is proposed to meet with each other, do not want to go home, looking for a place to sleep. But Xu tells of 6 defendants to his 19 year old. From this point of view, asked 6 defendants to bear the criminal responsibility is not appropriate, so the judicial interpretation of the supreme court criminal to exclude such behavior. However, the judicial interpretation have been strongly criticized by the Professor Su Li of Peking University School of law, criminal law scholars have strongly criticized the Soviet forces. Su Li that, since paragraph second 236 no provisions of knowing, that means not knowing can also constitute a crime, which belongs to the strict responsibility. We regardless of other, one look at the existence of strict liability in general provisions of criminal law. Article fifteenth of the criminal law act is intentional or negligent to the crime, the sixteenth further points out, if neither intentional nor fault, but because of an accident or force majeure caused no damage results, do not bear criminal responsibility. That is to say, according to the provisions of the general provisions of the existence of strict liability, no room, either intentionally or negligently. If so, can not think of the second paragraph 236th is strict liability in criminal law. If people do not know each other is the youngest daughter, deliberately he not carnal knowledge of a child, no fault, of course not conviction.