On the limits of analogical interpretation and interpretation in criminal law

Author:Li Ziping

Abstract: the line of analogical interpretation and the interpretation of criminal law in problem, there has always been the affirmative and negative dispute; affirmed and single standard, double standards and comprehensive standard. The complexity of analogical interpretation and expansive interpretation of boundaries, the comprehensive criteria. Therefore, we should adopt the comprehensive standard, and should be built as a hierarchy, contentScienceThe structure, system has the intrinsic link between different kinds of standard or angle.
 
 
   A: the analogy to explain the differences, and explain the expansion limit litigation focus

The line of analogical interpretation and in interpretation of criminal law, is the theory of criminal law are still to be resolved. Generally, "criminal law, although starting from the principle of legality position, prohibition of analogy to explain and strict interpretation, however, the interpretation of criminal law isLawExplain, not only allows the literal interpretation and logical interpretation, purpose interpretation aim is also possible, including not only from the point of view of the legislative purpose, objective, content defined narrow law (narrow) interpretation, expanding interpretation also includes expanded term meaning ". {1} however, the interpretation of criminal law text expansion enlarges the surface meaning, the provision does not specify the content contained in this clause, analogy and analogy of this interpretation methods to interpret the similarities, so, on banned explain relationship between expansion and allowed interpretation, has become the subject of criminal law academic controversial.

denied said that, analogical interpretation and expansion explained only exist logical form differences, since the interpretation of criminal law to allow expansion explanation, it should also allow the analogy. Therefore, to solve the boundary problem both not what practical significance, problem or not and how to solve the shall be of no great importance. Japanese criminal law scholars Kimura Rji also thought, "the difference between analogical interpretation and interpretation of the expansion is the difference of the matter, the difference between the standard is the idea of different", {2} should therefore be to some extent permitted analogy to explain, "according to the overall purpose theory on criminal law interpretation, reasonably determine the scope of the analogical interpretation". {3} but, due to the negative say the lack of rigorous scientific attitude, and easy to be used as a human rights accomplice, therefore, has not much market. Even if is a forceful advocate for Professor Kimura Rji said, after the Second World War, has also changed its basic position on the legal principle of crime and punishment and the explanation of criminal law, and think "analogical interpretation is beyond the law, even the expansion of the spirit of the law" in the field of law is specified, therefore prohibited the analogy to explain that, but reserved attitude on the analogy interpretation favorable to the defendant. {4} this basically reflects the negative trend of basic ideas. In addition, denied that there is another kind of tendency, namely "because of extensive interpretation and analogy are hard to distinguish, some countries (mainly Latin American countries) simply with extensive interpretation and analogy as included in the prohibited". {5}

definitely said that, the analogy to explain and explain the expansion of the principle of. The former is a matter for the criminal law has no provisions, analogical reasoning is most similar to the provisions of the criminal law matters; the latter is based on the content of criminal law legislative body contains the spirit of. Say generally favor the prohibition of analogy to explain and allow expansion explained, this is criminal law educational world dominant point of view. However, in the affirmative, the standards to distinguish the analogical interpretation and expansion of the interpretation of the problem, it is Public opinions are divergent., unable to agree on which is right. To sum up, mainly single standard, double standards and comprehensive standard three different points of view.

single standard that, should be based on a specific standard is simple, lively and will explain the difference between analogical interpretation and expansion. However, due to his subjective insights into the different, specific criteria adopted are not the same, can be summed up in the following seven kinds of views. One is the extent of the law said. It should be the scope is outside the law meaning as the standard, all of the provisions in the law within the scope meaning to elucidate its significance is interpreted, and vice versa is analogical interpretation. {6} two is the spirit of the legislation law said. It should be the spirit of the legislation is divorced from law as the standard, those who are not from the legal provisions of the spirit of the legislation is interpreted, and vice versa is analogical interpretation. {7} three is the logical meaning of the said method. It should be the legal provisions of the logical meaning beyond the scope as the standard, all in the legal provisions of the logic within the meaning of interpretation is interpreted, and vice versa is analogical interpretation. {8} four is the fact that the model law. This is consistent with the fact that should be the model law as the standard, every fact real cases in accordance with law in fact model is expanded to explain, otherwise it is the analogy to explain. {9} five is to predict the possibility that. It should be the possibility of predicting whether beyond national as the standard, usually does not exceed the national forecast possibility is interpreted, and vice versa is analogical interpretation. {10} six is a legal interpretation range. It should be the scope is beyond the legal interpretation of the standard, which is beyond the scope of legal interpretation is the analogy to explain, and vice versa is expanding interpretation. {11} seven is a way of thinking that. The theory should be based on different ways of thinking about the problem as a standard, "the analogy to explain, is selected from the first state and society from the standpoint and must not be allowed to act, and then find the thinking method, similar to the law on the contrary, expanding interpretation from the logical interpretation of law, consider the behavior is not belonging to the specified content, and based on this, thinking method considering various behavior of social life". {12}

double standard that, analogical interpretation and expansion explained threshold is more complex, difficult to use a standard will be strictly separated, therefore, should "work along both lines", also used two different. As for the specific application of which two standard, there are different views, can be summed up in the following three kinds of views. One is the meaning scope and predict the possibility might have said. The said claims or to predict the possibility and significance beyond the scope of the national criminal terms may have as standard, all in the same range explanation is interpreted, and vice versa is analogical interpretation. {13} two is a legitimate and reasonable limits that limit. The said that expanding interpretation should not violate the basic spirit of legislation (legal limit) and the name to the expansion of a reasonable degree (reasonable limits) as a limit, all beyond the expansion explain a reasonable degree of criminal legislation basic spirit and meaning can expansion is against the crime in law; expanding interpretation and not contrary to the basic spirit of criminal law and no more than the name can expand limits are consistent with the legal principle of crime and punishment. {14} three is a mode of thinking and cognitive methods said. The said that substantial differences between the amplified interpretation and analogical interpretation is the mode of thinking and realization method of interpretation. {15} expansion explanation is the greatest degree of legislative intention to ask, not for a specific behavior set, so from a logical point of view, is the first expansion explanation, according to a particular social harm behavior to analyze the behavior is consistent with the interpretation, application is to explain the existence of the first law after the behavior; and the analogy to explain is the first objective evaluation of social harmfulness of a specific behavior in criminal law, and then find out the similar terms to be applied, namely the first behavior after the interpretation of the law, is a kind of have the order reversed operation method, from this point, the analogy to explain completely contrary to the principle of legality, should be abandoned. {16}

comprehensive standard thought, how to determine the analogical interpretation and expanding interpretation limits is a problem, should be integrated in many aspects in order to obtain. The theory is generally believed that the boundaries, expanding interpretation and analogical interpretation can be distinguished from five aspects. One is the meanings of. Expand the interpretation of the conclusions, not beyond the words of criminal law may have the meaning of the interpretation of criminal law, namely, within the meaning of "range"; the analogy to explain the conclusions, beyond the language may have meaning, namely, interpretation of criminal law in the context of the "range". Two is the relationship between the concept of. Expanding interpretation did not enhance the concept of rank; analogical interpretation is the explanation will improve as more superior to. Three is the key. Expand the interpretation of focus on criminal law itself, is still the interpretation of normative logic; analogical interpretation focuses on criminal law besides the fact, is more of the facts. Four is the logic method. Expanding interpretation is a concept expansion demarcation of criminal law, which should be punished behavior included in this concept; analogical interpretation is to recognize an object behavior is not punishment, but with similar behavior the behavior and criminal law has the same harm on the grounds, as the object of punishment. The five is to predict the possibility. Explain the conclusion to expand in the citizen to predict the possibility; analogical interpretation is beyond the scope of citizens to predict the possibility of. {17}

but, also the scholar thinks, "some explanation is the analogy to explain or expanding interpretation, and not simply the meanings. In other words, some explanation is prohibited by the principle of legality, to weigh the provisions of the criminal law, the punishment of acts to necessity, possibility of national forecast, the provisions of the criminal law coordination, interpretation and language the core meaning of the distance etc. conclusion. In many cases, not even the language problems, but how to consider the law purpose and behavior problems, how to balance the legal interest protection function and the human rights protection function". Specifically, " (1) some explanation is the analogy to explain, in considering the terms may have meaning, but also the necessary punishment. The necessity of punishment is greater, the more likely explanation for the crime, this interpretation is identified as the analogy to explain the smaller possibility. Of course, in any case can not exceed the criminal terms may have meaning. (2) some explanation is the analogy to explain, in considering the terms might have on the provisions of the meaning, but also consider the relationship between the language and the relevant provisions of the. The relevant provisions of the criminal law to explain the conclusion and the content as well as the overall spirit of criminal law coordination, should not be regarded as the analogy to explain. (3) some explanation is the analogy to explain, in general people consider whether to accept the explanation at the same time, but also consider the type of crime. For example, theNaturalCriminal law interpretation of the expansion degree and range can be omitted to ease, broad; for the relevant legal criminal law interpretation is the opposite. (4) some explain whether the analogy to explain, in consideration of its criminal law at the same time, but also consider the difference between domestic criminal law and foreign criminal law provisions. For example, Germany, Japanese criminal law strictly distinguish between property and property interests, property interests will be interpreted as property is the analogy to explain. But in our country, the criminal law did not make this distinction, which may explain the property benefit for the property. (5) some explanation is the analogy to explain, in considering the terms of existing meaning at the same time, but also consider the termsDevelopmentTrend. If the interpretation conclusion accords with the development trend of language, the general should not be regarded as the analogy to explain". {18}

Two, analysis of the analogical interpretation and explanation: expansion limit standard

The author thinks that the , analogical interpretation and expansion explained threshold method, and is not a simple explanation, but the significant principle to the judicial interpretation of criminal law and the principle of legality. "The doctrine of a legally prescribed punishment and analogous and be irreconcilable opposed to tyranny. For any other interpretation of the law, can not be completely denied the legal principle of crime and punishment, can only be a limit or weaken. Therefore, the legal principle of crime and punishment can be used with any restrictions or weaken the interpretation method for their coexistence, opposite the formation principle and exceptions." {19} and "the analogy to explain this form of reasoning, its itself is not, because of the analogy itself, contains dangerous improper expansion of penalty regulations". {20} so, in order to ensure the legal principle of crime and punishment really implemented, prevent the judicial interpretation of criminal law "to explain the expansion in the name of the analogy to explain the relationship between", must clarify their analogical interpretation and expansion of the interpretation of the.

substantive due to extensive interpretation and analogy to explain the difference is a difficult problem in theory of criminal law, therefore, in the region of explanation and interpretation of the expansion push limit, not simply by a one or two standard, and should adhere to the comprehensive. In other words, namely single standard and the double standard that although each has its merits, but also are one-sided, distinguish responsibility. Two boundaries, so it should adopt comprehensive standard, from different perspectives, according to different standards, limits to push the expansion of the interpretation of the interpretation and classification. Moreover, the theory of the proposed area classification push interpretation and interpreted from various angles, the boundaries between the standard does not have exclusiveness, on the contrary, they can form a combined with each other, complementary structure system. Therefore, the various angles, the standard should be combined, each play different role in the difference between the two, complete the analogical interpretation and explanation to the common boundary expansion in cooperation under the task. It is in this sense, the author agrees with the comprehensive standard.

however, the standard two specifically in view, but not just as one wishes, mainly in the following three. One is the distinction between angles and standards are still one-sided. As the first argument failed to be examined from the provisions of the criminal law legislative spirit and norms, leading to even distinguish according to the standard line, analogical interpretation and expanding interpretation is still uncertain. The same kind of interpretation, some people think it is the analogy to explain, others think it is expanding interpretation. {21} this is mainly because the provisions of the criminal law, the intention and the spirit of the legislation should not only objectively looking from the criminal law in the language, but also should be combined with the whole system of the criminal law to understand the system. "Any one of the provisions of the criminal law is a part of the whole criminal law, any a word, terminology, concepts are the basic elements of a provision of criminal law, the meaning of the text of the text should be placed in the whole legal system using the contact point to explain, to achieve harmony context, and cannot be divorced from the criminal law system of mechanically to explain, so as not to interpret out of context." {22} two is some distinguished angle or standard is not scientific. If the above second kinds of views put forward the so-called "punishment" standard, although the criminal law theory in Japan can be found in the corresponding basis, {23} but, as the Japanese criminal law scholars have Genwei Yan pointed out, "the principle of legality is even with the necessity of punishment, but if not expressly provided in advance. Also shall not be, the principle of punishment, 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 protect the national freedom of action based on predictive likelihood principle". {24} Japanese criminal law scholars Nishihara Haruo also proposed the same views, namely necessity division interpretation and analogy to explain the expansion of national boundaries reference not to maintain order, and should seek to predict the possibility of the national. If necessary the National Policing as a benchmark, the risk will occur endlessly deprived of the freedom of action. {25} thus, in the field of criminal law judicial interpretation, "necessity" and "possibility" of punishment are diametrically opposed to each other, they will at the same time as the district classification push interpretation and expansion explain limits standard, will inevitably fall into, cannot make out a good case stultify oneself. Three is between the various angles and standards failed to form a structural system combined with each other, complement each other. Although various angles, standards have their own distinguishing features, but it is not enough to independently fully completed area classification push interpretation and expanding interpretation limits the responsibility. Therefore, must be from various angles, standard system, so as to form a whole with inner connection structure. Only in this way, the problem can be thoroughly break boundaries of analogical interpretation and expansion of the interpretation of the. The comprehensive standard two specific view only lists various angles and standards, but ignore the internal relationship between them, and even the emergence of the phenomenon of stultify oneself, so the whole, is not desirable.

Three, conclusion: the analogy to explain and explain the expansion limit standard

in view of the above comprehensive standard defects, the author advocates, should be comprehensive standard to construct a hierarchy, content of science structure has the internal point of view, different kinds of standard or contact. And the comprehensive standard system construction, we must resort to thePhilosophyThis is a conceptual category. In thePhilosophyOn the construction of system, called the category system. The so-called category, is the main thinking grasp the objective world universal or nature of the contact point or support. {26} does not have a category, it is impossible for people to grasp the objective world universal or nature of the contact, can not construct anyScienceTheoretical system. Specific to the comprehensive standard system construction, the first is according to the category system of certain standards to select the corresponding concepts included in the comprehensive standard, these two concepts such as "necessity" and "possibility" of punishment, because of its inherent contradictions, can only choose one column into the comprehensive standard category system. Secondly, we must classify the selected category, the parallel of concepts and concept to distinguish. If the above theory proposed"LawProvisions of the "law" meaning, scope of legislative spirit "," the law of logic meaning range "," legal provisions of the fact model "concept, in fact, are" under the concept of the concept of law ", but they are different from their own perspective (but with a cross and overlap in content) respectively" the legislative intent of the law "only, and therefore should not be these concepts as appositive category category system included in the integrated standard said. Finally, according to the classification model of {27} concept, the system, thus forming a whole with inner connection structure.

to sum up, the author thinks, comprehensive standard system should be the legal text, predict the possibility and way of thinking three categories. The three category is intrinsically linked, and their respective functions, the analogical interpretation and interpretation to distinguish under their joint efforts can. Specifically, comprehensive standard system which can be divided into the following three standards. A text is a standard. The range is from legal texts as the standard, all out of the scope of legal interpretation of the text is the analogy to explain, and vice versa is expanding interpretation. The range is from legal text, then from the "legal provisions may have significance scope", "the legal provisions of the legislation spirit", "legal logic meaning scope of the license", "legal provisions of the fact model" and other aspects of the comprehensive judgment. The text is to determine whether the primary standard, the analogy to explain the standard of the most basic kind of explanation, the minimum requirement is the implementation of the principle of legality. Therefore, in any case, should always persist firmly in adherence to this standard, but can not exceed the. That "some explanation is the analogy to explain, in considering the terms may have meaning, but also consider the necessity of punishment. The necessity of punishment is greater, the more likely explanation for the crime, this interpretation is identified as the possibility of the analogy to explain the smaller ", thus area classification push interpretation and expanding the boundaries of interpretation," in many cases, not even the language problems, but how to consider the nature and behavior method entry, how to balance of legal benefit protection function and the safeguard function of human rights problem "point of view, is a flagrant violation of the principle of legality, which is not desirable. Two is the social standard. To predict the possibility is beyond the standard, which is beyond the scope of the community with people usually judgment can predict the explanation is the analogy to explain, and vice versa is expanding interpretation. The social standard and text standard is two aspects of one problem, the two are often also is consistent, as most expansion of the interpretation of the conclusions, if starting from the angle of legal texts, it does not exceed the legal text literal possible meanings, then, starting from the general social point of view, also we are not surprised. However, the social standard consideration and starting point after all and text is different from the standard, but also the community with usually determine the ability of the ordinary people can only be predicted, according to the general language habit therefore, when some kind of interpretation is to expand the "scope of legal language" may contain inside, both will inevitably conflict and conflict. If the interpretation was surprised, for the average person is so, it should be to the social standard as a necessary supplement. "Therefore, in order to meet the substantive criminal law crime legal system designed to avoid the abuse of state power of punishment and suffered the bitter intention." {28} that "some explanation is the analogy to explain, in general people consider whether to accept the explanation at the same time, but also consider the type of crime" point of view, and has always advocated "respect for human rights" and "predict the likelihood principle" is draw further apart. The three is the thinking of standard. The mode of thinking and understanding method as the standard, where the "first objective evaluation of social harmfulness of a specific behavior in criminal law, and then find out the similar terms and apply" is the analogy to explain, and vice versa is expanding interpretation. Under normal circumstances, according to the text and social standard, can be interpreted analogy to explain and differentiate. However, because the limits of "analogical interpretation and expansion explained only inches", "so to their limits to strict distinction, is quite difficult, so the same example explanation, that belongs to the expansion of the interpreter, also think that the analogy to explain the so". {29} such as professor Zhang Mingkai think: "the article 259th of the criminal law 'live' concept, interpreted to include adultery long-term adultery or lead to serious consequences, which could be considered the analogy to explain, may also be identified as expanding interpretation." {30} I think it is difficult to judge, in the range of a conclusion whether from legal texts and are beyond the possibility of predicting the case, complemented by thinking, this problem can be smoothly done or easily solved. If the long-term adultery or lead to serious consequences of adultery is interpreted as "cohabitation", the mode of thinking and cognitive methods, apparently to make adultery long-term adultery or lead to serious consequences have serious social harmfulness evaluation, {31} and then find out the "cohabitation" the similar terms in order to apply the standard, according to the thinking the explanation, obviously belong to the analogical interpretation rather than expanding interpretation.

in addition, it is worth mentioning that, Professor Zhang Mingkai also proposed: "expand the interpretation and analogical interpretation of no fixed. The past belongs to the analogy to explain, may belong to expand the interpretation of, or on the contrary. Relative to this provision belongs to the analogical interpretation, relative to the other provisions may belong to the expanding interpretation." {32} so that "expanding interpretation and analogical interpretation no boundaries" fixed judgment, is really amazing. Study on the purpose, just want to emphasize aDevelopmentLook, the relative view limits the amplified interpretation and analogical interpretation. However, in this way, it inadvertently changed the concept, will be discussed in the "some explanation is the analogy to explain or expand the interpretation of" problem, they become "a language is the analogy to explain or expand the interpretation of" the problem in different texts. Indeed, the same word may have different meanings in different contexts. If there is a change in the text (such as the legal provisions of the amendment, interpretation) the same, may belong to the analogy to explain or expansion explanation, even the literal interpretation; similarly, the same interpretation of the same word in different texts, may also belong to the analogy to explain or expansion explanation, even is the literal interpretation. The problem is, "some explanation is the analogy to explain or expanding interpretation" is a specific text interpretation in terms of. In this particular case, may have the meaning of the term is fixed, boundaries of amplified interpretation and analogical interpretation is fixed. That kind of "expanding interpretation and analogical interpretation no boundaries" fixed judgment, seemingly dialectics, but its essence is not consciously agnosticism, helpless in determining boundaries of analogical interpretation and expansion of the interpretation of the.
 
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