Abstract: the analogy to explain the expansion of legal matters and similar matters, provisions make greatest beyond may have meaning of criminal law. In the academic circles of Chinese criminal law, there is great difference in whether to allow the analogy to explain the problem, there are negative and positive two give tit for tat. The judicial interpretation of the criminal law practice in the existence of the analogy to explain the imagination, to fill the loopholes in the law has certain advantages, but in theory there is a certain legitimacy and rationality.

Keywords: conceptual analogy to explain the validity of criminal law

The judicial interpretation of Criminal Law refers to the legal authority to further clarify the activities of criminal law meaning, or normative to elucidate the formation. The criminal law is the civil property, reputation, freedom and right to life and, therefore, organs of state has the right of interpretation of criminal law norms activities must follow certain principles, can guarantee the important criminal legal activity in healthy, smooth. The analogy interpretation refers to expanding the legal matters and similar matters, provisions make greatest beyond may have meaning of criminal law.

One, about the interpretation on criminal law dispute

In the academic circles of Chinese criminal law, there is great difference in whether to allow the analogy to explain the problem, there are negative and positive two give tit for tat:

(1) negative. The argument against the existence of analogical interpretation. Negation is now the Japanese criminal law circles say: most scholars also hold the negative. The main reason lies in the negation of that, analogy is a kind of criminal law to the law does not specify, is a failure of criminal law to protect civil liberties from the fundamental function of the interpretation of criminal law. Specifically, there are three main disadvantages:

1 have jurisdiction to invade the legislative too. The analogy interpretation allows the judge to criminal law norms applicable to go beyond the provisions of the text of law, is actually outside the applicable law allows the judge set with the text in the legislature to create the crime and the penalty specification, the the judge took the legislative functions has been across the range of our method, is judge made law, the judicial interference legislation.

2 suspected criminal deterministic damage. The norm of criminal law is the legislation's command, to determine the content of criminal law norms of life, allowing the analogical interpretation will bring the personal qualities, training, experience and give different criminal law of different content of the consequences, so that the command criminal law no longer has the sovereign nature of the contents of the criminal law, damage determination the rule of law, undermine the country's.

3 there is damage to the guarantee of human rights function too. The interpretation of criminal law. Criminal law is uncertain, citizens can not grasp the crime and non crime, this crime and other crime, penalty light punishment weight limit, not standardized as their behavior may be based on the criminal law, content to predict their behavior law may not according to the law consequences, thus, people could not use the criminal law provisions as their behavior of the boundaries and free.

(2) say. The argument that the criminal law on the analogy to explain the rationality of its existence.

The 1 analogy explanation is found "potential". Professor Wang Jin thinks that the criminal analogy to explain, if good use, can change with the crime, social development, and receive the cheap effect, "can not rigidly adhere to the old ideas and do not understand the law".

The 2 analogy interpretation is to make up for the defects of the legislation. Any criminal law can not be "complete and no blank". For not necessarily for the existence of criminal law is not to be without penalty, only by analogy method to handle, and analogy is extended to explain the irreplaceable

The 3 analogy interpretation does not necessarily harm the human rights protection mechanism. There is no necessary link between push and guarantee function of criminal law. Analogical reasoning is one of the most commonly used method of human understanding of objective things, the judge may determine behavior by analogy, citizens can also by analogy.

For the choice that the first thing to do is to define the concept of analogical interpretation about criminal law

Two, the definition of the concept of analogical interpretation

About the concept of analogical interpretation, starting from the perspective of formal logic, analogical interpretation refers to the methods of analogy reasoning, to clarify the legal provisions of the meaning, and from the specific content of the constitution, refers to the facts and the law to judge the basic similarity, the legal effect of the latter is applicable to the former.

Japanese criminal law scholars Ootani Mi pointed out: "as the legal interpretation and application method of analogy to explain or analogy, fingering the content is provided between the law, does not contain a problem and the law on the use of, in fact, because of its similar or in common, so will the law is also applicable to the latter."

Application of analogy mainly refers to the judges apply legal analogy method in the trial of specific cases, "judge made law is similar to the case law countries". The connotation of analogical interpretation should be more abundant, on judicial interpretation of criminal law and the stresses in the explanation, only refers to the highest judicial organ is explained by analogy in the introduction of judicial interpretation, completely different from the analogy of.

Since the Western Enlightenment thinkers put forward the principle of legality, banning analogy interpretation is widely accepted, as an important content of the principle of legality, prohibition of analogy to explain the requirements by banning all analogy explains only on prohibiting the defendant is not conducive to the interpretation of the evolution. The reason for the defendant is allowed on the interpretation of criminal law, because there are some analogy to the defendant; these Provisions because the text meaning applicable will cause the unfair phenomenon, so, allow analogy in favor of the defendant is explained, in order to overcome the defects that form side, the realization of the criminal justice. The defendant is allowed on interpretation, analogy to explain the prohibition against the accused has become educational circles say.

Three, from the perspective of practice on the judicial interpretation of criminal law interpretation

Think: in the field of criminal justice, does not allow the analogy to explain, but allows expanding interpretation. But in the judicial interpretation of criminal law in a considerable part of the existence of "analogy" phenomenon. In 2000 the "Supreme People's Court on corruption, embezzlement case how to identify several common crime question explanation" the first stipulation: the behavior of human and national staff collusion, by taking advantage of national staff, common embezzlement, theft, fraud or other illegal means to temporarily by public property, to punish corruption in public law. Corruption crime in criminal law provisions of the subject "state personnel", while the law is that countries outside the behaviour of staff who satisfy certain conditions, still can constitute the crime of corruption, there is an analogy to explain, explain the main body will "use of national staff identity" as a connection point on the, that the non national staff and the national staff collusion is the same, the national identity of the staff, and national staff to use their identity no substantial difference, should receive similar treatment.

The judicial interpretation of the criminal law practice in the existence of the analogy to explain the imagination, the Supreme Court is in some crime. So Zhu Suli said "judicial interpretation of the so-called, the fundamental point of view is not a problem, but a problem of judging." "There is a reasonable", the existence of all things can be found in the reasons for its existence, explain the analogy in criminal law, there are deep social base, mainly due to the limited legislation rational and the contradiction between the unlimited desire for justice. The human pursuit of rationality of law should be a continual process of development, because of its understanding is not the ultimate. Under the criminal law text in a clause is not complete, Its loopholes appeared one after another., does not meet the requirements of human ration, people hope that the interpretation of criminal law in large extent, the realization of legal rationality of loopholes. On the case, on the surface, it is a process of correcting the Supreme Judicial machine error, but together, in fact, the judicial interpretation is more appropriate to take care of the legal lag, give full play to the advantages of flexible, has important meaning to maintain social and economic order.

Analysis on the judicial interpretation in criminal law interpretation, four

Because of the law's general, universality, hysteresis and legislation of bounded rationality, the loopholes in the law is inevitable, we can do is to minimize or fill the loopholes in the law, so it is necessary to have an effective mechanism to repair, this mechanism may be to modify the law, may also be the interpretation of the law, may also be "judge made law".

1,The judicial interpretation of criminal law and criminal law is amended.

First of all, the interpretation of criminal law and modify methods are very flexible, cost savings, and for the amendment of the law, take a very long period of time, the nature of legislative power to make legislation activities of slow and cumbersome, and it is difficult to start, for quite a long time to find holes to fill the holes, the blank of justice during justice is very easy to loss; moreover, the subject of judicial interpretation of the judicial practice more familiar than lawmakers, master more effective information, may be more appropriate to fill loopholes in the law. Others have pointed out that the judicial interpretation has the possibility of tyranny, but this can be avoided by perfecting the supervision mechanism, the Franco German authority should and rationality of law is related to the existence of loopholes, itself is the authority of law of damage, and frequent changes in the law is not conducive to maintaining the stability of laws, judicial interpretations can be law additional, class a win-win rationality and stability "".

2,The judicial interpretation of criminal law and "judge made law"

The judicial interpretation of criminal law with judge made law there are different. "Judge made law" refers to the individual judge handling the case that Mo, law has not stipulated, but actually should be, i.e. exist loopholes in the law, and by explaining the related provisions the law matters interpretation, judgment and behavior. It can be the legal content into the specific facts of the case, the case after the event, the use is more. "Judge made law" exists generally in case law countries. At the same time "outside the law judge made law" allows the judge set with the text in the legislature to create the crime and the penalty, legislative invasion, also will bring the personal qualities, training, experience and give different criminal law of different content of consequences, so that the criminal law no longer has the sovereign the command properties of the rule of law, damage the content of criminal law, failure state. So, case law is more suitable for "judge made law", while the civil law countries, more emphasis on rationalism, is not optimistic about the "judge made law". But in our country is civil law countries, but also the lack of application of case law experience and sophisticated technology, combined with the actual situation of our country and legal background, perfect the judicial interpretation can save system cost more, but also more suitable for Chinese conditions.

Four, from the theoretical level analysis on the judicial interpretation of criminal law interpretation

1, the criminal law human rights protection function and analogical interpretation

Some scholars in the analogy to explain that, criminal law through its text form standard to guide, indicating the behavior of people, by the national criminal law language understanding of the criminal law prohibited in criminal law, and the analogy interpretation may be national cannot predict, then in the national implementation shall not be considered a crime behavior, also by the criminal punishment. Explain the damage of the criminal law human rights protection function of criminal law is suspected of analogy. Should be banned "excute without teaching". So for the criminal law judicial interpretation, before its entry into force should be disclosed, although, in practice the judicial interpretation of the public, published procedures and scope may also need to improve.

2, the analogy to explain the legitimacy of existence

"The similar cases similar treatment", is a Latin proverb, the legitimacy of the analogy to explain the main source for this. The analogy to explain the objective is to fill the loopholes in the law, the realization of substantive rationality, must first be sure, this kind of desire itself is legitimate, so the analogy interpretation is not a natural evil things. The reason why people think that should be forbidden analogy, is nothing more than to see or to predict the bad side of analogical interpretation, such as damage to formal rationality, stability of law, may lead to crime judgment etc.. Some criticisms of the analogy to explain itself, such as the existence of stability of analogical interpretation will more or less damage law, this contradiction is inherent, inevitable; some criticism has specific operating conditions of analogical interpretation, i.e. the real level, such as the analogy to explain the existence is likely to lead to crime judgment, this contradiction is likely to solve for example, perfect supervision mechanism.

In the face of the contradiction between substantive rationality and substantive rationality, stability of law and justice of the inherent, perfect state just wishful thinking, must be weighed the pros and cons. Simple to statutory crimes, and prohibition of analogy to explain, or should the defendant, operation simple, the theory can also easily gives the justification of legitimacy; but where?

This analogy above about explanation for people's freedom and for applying excessive limit, also be misfits and democracy, which is based on comparing the care law stability, can realize the substance justice more, formal rationality of law and substantive rationality to reach a compromise, and contains a reasonable analogy interpretation of judicial interpretation both the form and the judicial precedent system similar legal content, may promote the substantive rationality and formal rationality of the relaxation of contradictions.

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