The criminal procedure law interpretation theory

[Abstract]

   The criminal procedure law interpretation theory is an important method to study the criminal law theory, the criminal procedure law of scientific explanation theory, is the protection of the criminal law is prerequisite for the correct applicable in practice. From the judicial practice of our country at present, it is because of the lack of interpretation of criminal procedure law, in the operation and application of the criminal procedure law, widespread misunderstanding even deliberately misinterpreted the legislative intent of the criminal procedure law, which greatly damaged the implementation effect of the criminal procedure law and function. Therefore, strengthening the theoretical research of criminal procedure law interpretation theory has become an important academic responsibility and urgent academic task.
　　　　

[Abstract]

Interpretative approach is an important methodology in the field of criminal procedural study. A proper interpretative approach can ensure the criminal procedural law a good application in judicial practice. However, there is not an appropriate and practical interpretative method to pilot the application of Criminal Procedural Law in China's recent judicial practice. Moreover, some legal powers misunderstand or even misinterpret the original attention of Criminal Procedural Law, which damages the anticipative functions of Criminal Procedural Law immensely. Accordingly, paying more attention to the interpretative approach of criminal procedural law becomes an important topic for prospective scholars

[Key wordCriminal Procedure Law Interpretation of law Subject of interpretationInterpretation method

One, introduction: the interpretation of criminal procedure law and criminal procedure law on Transformation of research paradigm
　　

   At present, the criminal procedure law amended again and other topics, procedural law scholars launched a lively discussion. However, calmly meditation, I believe that in the current criminal procedure law under representation of prosperous also lurk Cecil worries, this is the research of criminal procedure law paradigm is too single, lots of academic works focuses on offering advice, if things go on like this, the strategy and scheme, for the re amendment of criminal procedure law, criminal procedure law research may the guide led to the lost, to mislead the research of criminal procedure law theory. In view of this phenomenon, the author thinks, the criminal procedure law of our country has already entered a much-needed paradigm integration stage, should be based on the interpretation of criminal procedure law theory is put forward as an opportunity to research on the reconstruction of China's Criminal Procedure Law Paradigm and system.
The Japanese civil law wife Rong had the basic problems of civil law study is divided into three topics: legal value, legal and other social phenomenon, the legal structure of the relationship between technical problems. ⑴ the judgment and the conclusion is also applicable to other legal disciplines, therefore, may be in general can be the basic problems of criminal procedural law research and paradigm of extended into three dimensions, namely: "value", "methodology" and "fact research". "Value" is the study of a kind of ideal, it has to answer the question, the criminal procedure law should be what? It is concerned with the ideal and the value of the criminal procedure law, the research methods is value judgment analysis method. "Study" methodology is a reality, it is to answer the question, the criminal procedure law actually is what appearance? It is concerned about the law and technology, the criminal procedure law meaning, system such as jurisdiction, the provisions of the criminal procedure law defense, enforcement measures, what are the elements and procedures of these litigation system. "The fact of" is concerned with the function of criminal procedure law in the role of practice, research methods adopted by the utility model is an empirical study of the method of legal sociology. It should be said, these three studies to the research methods and the research, for the whole criminal procedure law system construction are indispensable, but this does not mean that the above three kinds of research paradigms in parallel without the level of the research of criminal procedure law sense.

  　　1, from the nature of the subject of criminal litigation, the nature of the subject of narrow sense "law" defines the mainstream paradigm of the research of criminal procedure should return to "the methodology of jurisprudence"
　　 

     The existence of law, as an independent discipline, because it has an independent research object and research method, this is "the methodology of jurisprudence".The German jurist Ralez points out, the law is a kind of complex social phenomenon, therefore, the research on from the different angle, will form the different disciplines of law,"Because the law is a social dimension, dimension, time dimension rules, the dimension of ideas, so in such a complex phenomenon, from different contexts, hierarchy and the observation angle of view, will form the different disciplines of law, ", which formed the sociology of law, history and philosophy of law and a series of legal branch, but the law of branches of the subject and the narrow sense of" law "(i.e.Dogmatics of law) in the research object and research methods have great difference: on the research object, object of study is the social law as a social phenomenonLawIt is, as a kind of social system law, considering its role in society and the effectiveness of the social conditions; the object of legal history is the past persistent influence on law, the law as a"The time history of structure"From the current, so the experience of exploring the historical evolution, it formed the background; and the philosophy of law (includingThe natural law) is devoted toValidity as a concept based on the existence and significance of law. ⑷ but, as the narrow sense "law" and the law branches are different, it is to handle -- normative sense -- law as its main task knowledge, the main discussion isNormative significance,"As a law to deal with a normative perspective law as the main task of the law, in other words, the main to discuss the specification of the 'meaning'. It is of concern contents of empirical law effect, standard, and contains the court of judge. When we put the law as a 'normal science', does not mean the fingering itself may enter into a standard, the law in force. In principle, it should think a, by which the current law system about the statement." It therefore, compared with other legal branches, "law" has a special status, because it is closely related with the law practice field, so,"Law "in principle only at that time, the specific order of law. The methods in the study, the sociology of law mainly uses sociologyThe empirical research method, i.e.Study of factsThe history of law; mainly use historical research methods; the philosophy of law mainly uses the research methods of philosophy, i.e.Value researchAnd the law is usedThe method of logical analysis and semantic analysis, i.e.Legal hermeneutics, also is the methodology of jurisprudence.
Therefore, starting from the subject attribute of criminal litigation, the research value in the method, the theory research and factual research three research method and paradigm, methodology research is criminal legal hermeneutics should be mainly research the research of criminal procedure law and the mainstream paradigm.

  　　2, from the subject of criminal procedure law system perspective, in different stages of social and academic development, the three paradigms are often focused

In a country's legal system start-up period, the value of a dominant, because the value of research often has a direct guiding role and guidance significance to the establishment of legal system is developed; while in the period, more emphasis on the research methodology and the study of facts, because at this time, the frame of the legal system of country has become, more for correct application of law and the effect of law enforcement.
Because our country has been in a legal long start-up period, thus "methodology of law" also be long in coming to study in the law field, property research of criminal procedure law makers do not consciously aware of criminal procedural law as a "pragmatic", also failed to get rid of Chinese ancient kind of "valuing knowledge more than" or "praise study of the traditional thinking mode suppression", especially with the annotation which kind of contempt law, pay attention to "pettifoggery touts" case analysis of the legal concept of traditional culture come down in one continuous line. And so, since the 90's of the twentieth Century, obtained a great development period in the study of law, value of it has become the main method and the mainstream paradigm of research of criminal procedure in china. However, the value of Confucianism in the research of criminal procedure in China, is to belittle methodology that criminal law hermeneutics as the price. For a long time, some scholars because of misunderstanding will"Hermeneutics of Criminal Procedure Law"Pay attention to" notes law ", and takes it as an important object of academic criticism, that the main problem in the current research of criminal procedure law is still affected by the current legislative limitations, can not completely shake off the shackles of explanatory jurisprudence," from the existing research results, teaching materials and PU and books are, and most tutorials and paper, only on the current legislation and judicial organs of some explanatory document defining explanation and demonstration, ", therefore, how to get out of 'annotation jurists' barriers, to build a more scientific criminal procedure law system is a major issue facing criminal procedural law, and to improve the research of criminal procedure law system, we must first to strengthen the study on basic theory of criminal procedural law. "However, as the Japanese jurists my wife, Mr. Rong pointed out," not with the research on Realization of the ideal law is blind, not with the actual inquiry Law Center law is empty, not with weak legal constitution law, "that the lack of research on the methodology of criminal law certainly because of the lack of empirical basis and technical support to the implement and lead the development of practice, the criminal procedure law amended in 1996 after the implementation of the status of a profound confirmed this judgment.
Even more serious is the lack of research value, research only and methodology, can easily lead to the research of criminal procedure law "in the legislative centrism", and also indirectly contributed to China research of criminal procedure law characteristic"Around Zhongnanhai"Phenomenon, namely the procedure law makers research center and academic interest is not by legal interpretation reveal the rule of the meaning, but constantly revised rules to facilitate the research of criminal procedure law, so alienated to" study "the amended criminal procedure law, as some scholars have pointed out:" in the past few decades, the criminal procedure law there are a lot of problems, in the implementation of the criminal procedure law of 1979, the National People's Congress in 1996 was revised. But the amended criminal law scholars still cannot make satisfactory, almost from the amended criminal procedure law enacted at the beginning, the interpretation of the law by the endless criticism. Since then, criminal procedure law is no longer a Criminal Law Hermeneutics, and the revision of criminal procedure law science....... The object of criminal procedure law is not of faith, but became subject to repeated criticism, repeated modification. This trend almost drowned on criminal law interpretation, the jurist should focus on the completion of business, even by the No one shows any interest in doom." ⑾
In fact, many problems in our current criminal procedure law encountered during the implementation process, although there are indeed some must pass legislation amendment ways, but more can actually resorting to approach to the interpretation of criminal procedure law to be solved. Otherwise, even if a lot of people like, the criminal procedure law amended after again and finally formed a relatively perfect style and content, will still because of inherent limitations grammar and application of distress, when scholars must make a request to amend the criminal procedure law, the public calls Wan Shanxin. However, the legislation will never be able to solve problems of justice. Therefore, the author thinks that the fundamental way out is to explain the criminal law theory is introduced to realize the transformation of research paradigm of criminal procedure law, advocated the research of criminal procedure law should focus on the search for the provisions for criminal law significance, through the text of the interpretation of criminal law means to apply the law in the most appropriate sense.
I do not deny that, research on value theory in the criminal procedure law and advocated for before and the current criminal procedure law in our country the construction of positive significance, which is the time required, logic is also the process of theory development, but if only a theory in the criminal procedure law and no criminal procedure law, the so-called theory of criminal procedural law may become no play is difficult to achieve the value target of the ideological speak generally,. Objective circumstances, China's current criminal science development view, notes the science of criminal proceedings and theory in the criminal procedure law also are in the comparatively backward situation, the same as to the criminal procedure law of hard work. Therefore, the author at reviving "the Glossators" slogan, "notes for criminal procedure law" as a school of rebirth, advocating a return to mining "annotation of criminal procedure law" through the text explains the correct application of the law spirit, construct the micro foundation of the construction of rule of law of criminal procedure.
 
   

Two, the interpretation of criminal procedure law ontology
　　

    (a) subject to the interpretation of Criminal Procedure Law
　　

    Case: according to the September 6, 2005 "Chinese morning news" reports, Shenyang's first civil report website -- "China report network" was closed. Communication Management Bureau of Liaoning province that the website "relates to e-mail, accept masses to report information to the relevant departments, in violation of the" Criminal Procedure Law of the people's Republic of China "the eighty-fourth regulation, 'any entity or individual finds the facts of a crime or criminal suspects, has the right and obligation to the public security organs, people's Procuratorates or the people's court or report. The individual has no right to accept the citizens' report and verify the report content, belong to illegal behavior". Here, to ask the Liaoning communications authority explanation of "Criminal Procedure Law" eighty-fourth article is correct, the first question is, Liaoning communications authority is a criminal procedure law legal interpretation subject? As an administrative organ, whether the Liaoning communications authority has the power to make administrative punishment according to the criminal procedure law? The author thinks, according to the provisions of China's "criminal law" article first and article second: "in order to ensure the correct implementation of the criminal law, punishing crimes, protecting the people, safeguarding state and public security, maintaining social order of socialism. According to the constitution, this law is enacted." "Criminal Procedure Law of the people's Republic of China is the task, to ensure accurate, timely find out the facts of the crime, the correct application of the law, punishment of criminals, to protect innocent people from criminal prosecution, to educate citizens to consciously abide by the law, actively struggle against criminal acts, to uphold the socialist legal system, the protection of citizens' rights of the person, property rights, democratic rights and other rights, guarantee the smooth progress of socialist construction." The criminal procedure law "only for the correct implementation of criminal law and the" guarantee "to find out the facts of the crime, the correct application of the law, punishment of criminals, to protect innocent people from criminal prosecution" of criminal lawsuit activity, but not as administrative punishment according to; moreover, the Liaoning Communications administration as an administrative organ, but also the right to explain the criminal procedural law.
Such as the example above shows, in the judicial practice of our country, there is the interpretation of criminal procedure law subject the generalization of the phenomenon, which in addition to the actual participants in Criminal Procedure -- the public prosecutor, three organs, other administrative organs such as the Ministry of justice, the customs, the State Planning Commission, in the exercise of the interpretation of criminal procedure law power. The subject of interpretation of the generalization of the phenomenon, not only greatly diminished criminal procedure law authority, but also easy to cause the criminal procedure law, the spirit of error even misinterpreted.
The author thinks, the criminal procedure law's functions and tasks with special properties, which can only be applied to investigate the suspect, the defendant of criminal responsibility in criminal procedure, accordingly, the criminal procedure law interpretation subject should also has specificity, which is only applicable law enforcement of the criminal procedure law, in addition to other subjects and the other in general, especially the administrative organ, not the interpretation of criminal procedure law subject. Of note, here as the criminal procedure law of subjective interpretation of the meaning of "law enforcement" is generalized, which is not limited to criminal justice, including police and prosecutors, the latter in criminal lawsuit activity, but also in a certain range to explain that the criminal procedure law. In general, we were recognized by the judge as a legal interpretation subject, because of the application of law must explain the law, "understanding, interpretation of law is the fusion of most of the scenes in law and the case when, at this time, in addition to the judges, legislators could not put his design for the legal guardian, in other words, lawmakers impossible to act as the legal meaning of each case interpretation...... In the trial process, can only be entrusted legal fate to the judge, he is in a specific case law will announce." Let us say, based on this, enjoy the power of legal interpretation is be beyond all doubt. However, this does not mean that the police and prosecutors as applicable law of criminal procedure can not explain the law of criminal procedure, "the life of law expands, need more extensive subject to understanding, interpretation and application of the law, and here we only take judges carried out as the main body of law interpretation, it is not in the scope of legal restrictions, or kill the life of the law? In other words, why only in the judicial activity is the judge has the power of legal interpretation? The other main why not have the power of legal interpretation? Don't judge the main carrier is not the law of life?" As for the police and prosecutors, executive subject they also use criminal law dealing with specific cases, in dealing with the concrete case, the criminal procedure law, the understanding and interpretation of the premise and foundation of performing their duties. For example, "criminal procedural law" the fiftieth stipulation: "the people's courts, the people's procuratorates and the public security organs shall, according to the circumstances of the case, the suspect, the defendant can summon, bail or residential surveillance." The same method of fifty-first to 61 and then set bail, residential surveillance, detention and arrest. But, in a criminal case, whether the suspect is consistent with the statutory conditions of the coercive measures, and ultimately can only rely on the police or prosecutors judgments, and the judgment is essentially an explanation. Because of this, the German scholar Thomas Weigend pointed out: "the German criminal law and criminal procedure law is explained by the application and enforcement of the law authority -- they are police, prosecutors and courts." Engage in Germany, "the majority of scholars believe that the prosecutor should have the right to interpret the law, procuratorial independence should be extended to this category." There
Of course, the criminal procedure law to explain the relationship between the criminal justice and police, prosecutors should be dynamic and level of understanding. As everyone knows, before and after the process of criminal proceedings in succession, with diachronic characteristic, effect of different interpretation of the subject is made in different stage of the proceedings of the interpretation of the level difference exists: explain the behavior of the police and prosecutors mainly occur in the pretrial stage, and explain the behavior exists in the trial stage, before and after the criminal proceedings one after another and trial center status decides the prosecutor explanation power than the police, and the judge explanation power than the prosecutor. "In any cases of doubt, the court has the power to interpret the law", and this is the basic principle, in the same case, the judge explained with finality, its effectiveness should be higher than the police and prosecutors explained, this is decided by the final jurisdiction. Therefore, the police and prosecutors to explain the general has only stage meaning and procedural meaning, but not with the entity the final meaning, police and prosecutors finally explanation should be subordinated to the judge's interpretation. Wood

　　(two) the object of interpretation of Criminal Procedure Law

Generally, in the process of legal jurisdiction, applicable, constitute the basis not only a formal legal, but also includes informal legal. Because, in general, the judiciary will find that in view of the case law in the legal text formally, but in exceptional circumstances, such as the vacancy of laws of formal (or silent), serious conflicts, or the appearance of the general law and legal value in the case of so, the judiciary has to find justice for standards the case in informal law. The characteristics of the judicial process, object determines the interpretation of the law not only includes the formal law, also includes informal legal. Said this conclusion is also applicable to the interpretation of criminal procedure law.
1Formal sources: Law and international treaty
Law is the primary object of interpretation of criminal procedure law. In our country, as the law of criminal procedure law includes the formal source of law:
(1) the Constitution
Criminal litigation and accused of protecting basic human rights provisions of the constitution, constitute the object of interpretation of criminal procedure law.
(2) the code of criminal procedure and its amendment
At present, refers to the 1979 July 1 of the Fifth National People's Congress of the second meeting of the January 1, 1980, the implementation of the code of criminal procedure, as well as the March 17, 1996 eighth session of the National People's Congress fourth conference, January 1, 1997 revision of criminal procedure law enforcement amendment.
(3) other legal provisions involved in criminal proceedings
Includes three categories: the first category is the organizational law, such as "the people's court organization law", "law of the people's Procuratorate", "Prison Law", "judge", "prosecutor law", "lawyer law"; second class contains substantive procedural rules, such as the "criminal law", "the national security law", "law on the protection of minors", "Juvenile Crime Prevention Act"; third is the complementary law enacted by the NPC and its Standing Committee, such as the sixth session of the National People's Congress on September 2, 1983 by the Standing Committee of the investigation, "about a state security organ exercising police detention, preliminary examination and execution of arrest authority decided to" etc..
(4) the Civil Procedure Law
Any proceedings are very common, some so, when there is no law of criminal procedure on a certain issue regulations, relevant provisions of the civil procedure law allows the analogy. At this time, the civil procedure law also constitutes one of the sources of law of criminal procedure law, so it should become one of the objects of the interpretation of criminal procedure law. In this regard, Macao area "Criminal Procedure Law" in China, fourth (loopholes fill) clearly stipulates: "if there is no provisions, and the provisions of this law cannot analogy, is to abide by the rules of civil procedure in coordination with the criminal procedure; if no such provisions, is applicable to criminal proceedings general principles." Think academic explanation: Criminal Procedure Law is an independent department law. However, due to the complexity of the proceedings, there may be some not or matters prescribed in criminal procedure law. Therefore, the law allows the analogy "criminal procedural law", in addition, any procedure itself has certain commonality, when cannot analogy "not stated in the code of criminal procedure" to solve the problem of the proceedings, the provisions of the criminal procedure law, should be civil procedure, compliance with criminal procedure coordination the provisions of the regulations that may apply by analogy, the civil procedure law. Shout
(5) the international treaty.
According to the international law on the "sacred treaty" principle, formal treaties on the parties create a binding international treaty obligations, once effective, the parties shall in good faith, strictly fulfilled its obligations under the treaty, and shall not violate. Therefore, for the international treaties signed, the acceding States, it constitutes one of the formal source of law in the country. In our country, international treaties to become the object of interpretation of criminal procedure law, must be approved or China joined the international treaty as the premise. From the principle of speaking, can be applied directly in China in the field of criminal procedure for the provisions of international treaties had concluded or acceded to by China, and has the effect of higher than China's current criminal procedure law; conflict with the present criminal procedural law and criminal proceedings of the international standard, shall be applicable International conventions. In this regard, the Supreme People's court "explain" 317th stipulates: "the international treaties concluded or acceded to by the people's Republic of China in about the specific provisions of criminal procedure, the provisions of the international treaty shall apply. However, except our reservations clause." Since the International Convention constitutes formal sources of China's domestic law, can become judges basis, then, it should also become one of the objects of the interpretation of criminal procedure law. When the judiciary will be used as the basis for decisions, also need to explain and prove the.
2Informal source of law: national criminal policy, criminal procedure and general principle
(1) the national criminal policy and informal sources sometimes form according to judicial application and execution of the criminal procedure law, and thus became the object of interpretation of Criminal Procedure Law
The German "Criminal Procedure Law" article 158th, 160 and 163 shall, as soon as the crime suspect, the police shall accept the crime report, told and start the investigation procedure. But for some cases, the police often fails to perform the obligations. As in the family, friends or neighbors and other social intimacy occurs when a slight physical injury or insult, forcing conditions within the category, the police often refuse to accept. This is because, in the face of this situation, the police do not see themselves as part of a criminal investigation organs, but considered himself a mediation, to appease the Department, it is not willing to start the program, so as to avoid further argument. (21) here, the police make decisions based mainly is the national criminal policy. In our country, there is a similar situation, for example, in 2005 the Zhejiang Province Higher People's court, procuratorate and the Provincial Public Security Bureau jointly issued "on the handling of the law applicable to a number of minor criminal cases opinions" provisions, in accordance with the criminal procedure law, to make clear provisions on the applicable law of minor criminal cases the civil disputes, because such cases can no longer be investigated for criminal responsibility. In addition, the 2004 Jiangsu Wuxi Huishan District procuratorate began to explore the "restorative justice" mode, the 2006 Yantai city procuratorate implementation of "peace and justice" program, (22) of these measures is the main legal basis "Leniency", "gently heavy", "cheap" and other light punishment of criminal policy.
(2) general principles are not clearly defined in the law of criminal procedure and other legal documents in the criminal procedure, also may according to applicable judicial and enforcement of criminal procedure law, it may also become the object of interpretation of Criminal Procedure Law
The provisions of the Macao area "Criminal Procedure Law" in China. Article fourth of the criminal procedure law loopholes added, when the practice in some situation or matters not stipulated in criminal procedure law, the relevant provisions and no criminal procedure law and the civil procedure law for the analogy, the general principle should apply to criminal program. (23) the general principle in the judicial application of criminal procedure as the criminal behaviors, the general principles of the criminal procedure law should become the object of interpretation of criminal procedure law.
　　

   Our traditional litigation according to the theory, principles of criminal procedure law, in criminal proceedings must strictly observe and implement, but this is the Constitution and the law clearly stipulates as the premise. To sum up in a word, the principle of criminal procedure to produce similar legal binding, must by law (constitution or criminal law stipulation as its premise;) procedure legislation does not expressly, is not binding on the public prosecutor, judicial organs. However, this view practices with most countries draw further apart, also do not accord with the basic legal principles of criminal procedure law, because, although it does not have the standard form, but often with norms, the German scholar Joachim Herman once pointed out: "not the principles of criminal procedure law is the law more specific, can to summarize the method from the direct access to the referee. On the principles of criminal procedure law, we often shall be deemed a direction, but allowed for 'optimization rules'. The criminal procedure law is not always explicitly stipulated the principle of criminal procedure law." (24) he will think that criminal procedure law does not expressly provided, the principles of criminal procedure law will not be applied view called "simple legal positivism thoughts". He exemplified the Chinese said, "Criminal Procedure Law" provisions of article thirty-fifth, does not allow only according to the confession of the accused and convicted him. In Germany the "code of criminal procedure", we do not read similar provisions. Due to the clear prohibition only off for lack of criminal law in Germany, China readers could think in criminal proceedings in Germany confession completely sufficient basis for a guilty verdict. In fact, the German judge, identify the principles of criminal procedure law substantive law facts, is the guiding principle of the standard. So, as long as no other evidence of authenticity for the review of confession, German judge treatment on the confession, judges and China on results, not guilty of a crime. This shows that, despite the German criminal procedural law does not make provisions for the principle, but the principles are still on the court found evidence, judgement has standard, constraint function, regulating principle of criminal procedure not playing in the criminal procedural law expressly provides for the premise, "as a guiding principle, the principle of criminal procedure law will be with very different way, affect the specific application of the criminal procedure law provisions of germany." 25.
The general principles of criminal procedure law does not expressly provided that in the case still has the effectiveness of norms, is because these basic principles reflect procedural justice, is a consensus, a "natural justice", without the need for laws to be specified. As the former Soviet Union scholar Jawitz pointed out: "in the legal practice of the development of the very important axiom has a special meaning and extended to the whole law field, they should also be included in these principles. Especially about anyone can not make him a judge in his own case and anyone should not be a crime and the two trial advocates, belongs to this axiom. There is no denying the fact that obviously and these axioms are so great that they do not require special legal explanation, or, strictly speaking is the same, they are detailed on the other principles." (26) therefore, even if the text of criminal procedure law does not expressly provided, the general principles of criminal procedure has the same effectiveness of norms and legal binding force, can form the basis for judicial application and enforcement of criminal law, so it should become one of the objects of the interpretation of criminal procedure law.
Example: together with the letter of credit fraud, Wang Mou of the accused person is the people of Hainan, the main crime and the results are in Hainan, but there are also some victims in Beijing. Driven by interests, a Beijing court accepted the case, the defendant Wang believes that in accordance with the provisions of the regional jurisdiction, Beijing area court does not have jurisdiction to the case, but the court did not listen to the defendant's application. At the same time, as a result of the defendant is not entitled to reject the objection to the jurisdiction of the court of appeal right, therefore, directly sentenced to the defendant for a period of 10 years. Responsible for the case of the lawyer thinks, our civil procedure law expressly provides that: the parties to the jurisdiction objection, the people's court shall review. Objection, should have ruled that transfer the case to the competent people's court; if it refuses to accept the court to reject the application's ruling, the parties can appeal. But the current criminal procedure law does not stipulate, it can not be said to be a major omission of legislation. (27) Legislative omission is an indisputable fact, however, we can use to explain the theory of object theory, to supplement the omission. Because, according to the theory of the object of civil procedure law interpretation, of course, constitute one of the objects of the interpretation of criminal procedure law, criminal procedure law for matters not expressly provided, we can through the relevant provisions on the jurisdiction objection analogy in the civil procedure law to be trap. The case is the emergence of procedural flaws, the key lies in our country judge interpretation theory of criminal procedural law in strange, can not be applied to criminal trial practice, also will not be able to timely respond to difficult problems appeared in practice.
 
   

Three, the Criminal Procedure Law Interpretation Methodology

　　Interpretation is the core and soul of the interpretation of criminal law. Subject of interpretation, interpretation object is to use for specific interpretation of the "hardware" and create the conditions, the reasonable interpretation conclusion on the correct method of interpretation. Our department of law interpretation research methodology mainly reflected in the substantive law of the civil law and criminal law, criminal procedure law interpretation as the research method of procedural interpretation of the theory is still in the initial stage, therefore, the interpretation of criminal procedure law should be based on the methodology used by the interpretation to the civil law and the interpretation of criminal law. However, as the law of criminal procedure law and the civil law as private law as between the criminal procedure law, procedural law and criminal law as an entity law, in legislation and judicial technology after all has the very big different. In the general interpretation method of civil law and criminal law field into the interpretation of criminal procedure law school, must according to its special subject attributes make the corresponding adjustment, because, the same interpretation method in different departments of law in the field of expansion degree is not the same, or simply can not be used, such as the wide use in the civil law in the field of social interpretation and comparative law interpretation method for conflict with legal procedure is not suitable for use in the Criminal Procedure Law Hermeneutics; and procedural law attribute of the criminal procedure law also determines the number of rejection in the field of criminal law interpretation methods, such as the amplified interpretation and analogical interpretation, in the criminal procedure law interpretation, but also occupies a very important position.
Overall, method of interpretation of criminal procedure law theory can be divided into three categories: literal interpretation, systematic interpretation and analogical interpretation.

　　(a) the literal interpretation
The so-called literal interpretation, according to the provisions of the Criminal Procedure Law refers to the language meaning and interpretation method is usually used to explain the meaning of the criminal procedure law. Literal interpretation is the interpretation method of the most basic, as long as the application of criminal law, will involve using, literal interpretation method at the same time, as long as the literal interpretation conclusion is reasonable, there is no need to take into account the logical interpretation method; if the literal interpretation conclusions unreasonable or produce a variety of conclusions, there must be a logical explanation. 28.
Literal interpretation can be divided into literal interpretation and the interpretation of grammar. The so-called literal interpretation, mainly from the meaning of articles in the criminal procedure law by the use of the word comment, so as to clarify the meaning of legal provisions. The legal meaning of the words can be divided into general meaning and professional meaning, the former refers to the legal terms of direct access to the everyday language, so legal terminology and daily life language meaning is the same; the latter refers to in terms of daily life become law after the special terminology, has the special significance and daily conversation different. From the principle of speaking, literal interpretation shall be firstly according to the usual meaning of words to explain, "popularization of law popularization is the modern trend, general requirements but also social, legal as everyone knew to do people are law-abiding, the formation of rule of law society. So the interpretation of the law should be to explain to understand the significance of." (29) however, when legal term system terminology, in the criminal procedure law has specific meaning in everyday language, it should be explained according to its specific meaning. For example, China's "criminal law" the eighty-second paragraph second for "close relatives" meaning: "'close relatives' refers to the husband, wife, father, mother, son, daughter, brothers and sisters." The "children", not only refers to the legitimate children, including children born out of wedlock; "brothers and sisters", not only refers to the same parents brothers and sisters, including half brothers and half sister.
In addition, to maintain the same concept is one of the most important rules of literal interpretation. The same laws or legal to use the same concept, principle should be the same for different interpretation; interpretation, must have a special reason. For example, "close relatives" one word, in China's "Criminal Procedure Law" to avoid and bring a private prosecution, its meaning should be consistent. Provisions as Germany "Criminal Procedure Law" "engaged" enjoy completely unrestricted right to refuse to testify, that the German case, the concept here "engaged" is different from the civil law, but according to the "moral theory" as a future marriage decisions. Therefore, even if is very carefully contracts between the pledge of minors in civil law, although because of the lack of legal consent and void, but in criminal law is acknowledge its validity. But if it is under the guise of the name deceive people marry the marriage commitment, which in the civil law until revoked were effective, but in criminal law belongs to the invalid from the beginning. 30.
In addition to literal interpretation, an important form of grammar explanation is the literal interpretation. The so-called grammatical interpretation, is mainly the analysis of the grammatical structure of the phrase, the legal provisions of the sentence structure, word structure, word order and punctuation, meaning and content so as to clarify the legal provisions of the. For example, China's "criminal law" the forty-eighth stipulation: "the defect or young physically, mentally, to distinguish right from wrong, cannot properly express themselves, not witness." Here, the so-called "legislative defects or young physically, mentally" and "can not distinguish between right and wrong, cannot properly express", in the end is a parallel relationship, or relationship, both in theory and in practice has been controversial. But from the syntax structure, which should be a parallel relation, namely must also have both, can be excluded as a witness qualification.
Example: China's "criminal law" the ninety-sixth stipulation: "the case involves state secrets, the criminal suspect to hire a lawyer, shall be subject to the approval of the investigation organ....... Cases involving state secrets, the lawyer meets with the criminal suspect in custody, shall be subject to the approval of the investigation organ." This item is about the criminal suspect to hire and interview with the restrictive provisions of lawyer, because of concerns of the suspect's right of defense and the protection of basic rights, therefore, must correctly understand and explain the law "in cases involving state secrets" "connotation, relations in order to accurately grasp the" protection "and" reasonable limits ". According to the original intention of legislation, the so-called "cases involving state secrets", refers to the nature of the case or cases involving state secrets, but not because of the relevant materials and processing opinion investigation in criminal cases, to keep a secret as cases involving state secrets. However, in the implementation of the criminal procedure law soon after, the Ministry of public security has issued "Regulations on Lawyers in the investigation stage" in criminal litigation activities in Song solution, will "cases involving state secrets" for "security law" interpretation of the provisions of article eighth of the situation, and the Ministry of public security, State Security Bureau on the regulations of the public security in the work involving state secrets specific scope related matters; in the Supreme People's Procuratorate issued "the people's procuratorates exercise 'criminal law' of the people's Republic of China Rules (Trial)" also provides: "the state secrets refer to relevant matters involving state secrets specific scope of procuratorial work confidentiality provisions law" eighth article of the cases and the Supreme People's Procuratorate and the National Security Bureau. This explanation is the consequence of: in accordance with the "provisions on the confidentiality law", "maintenance national security activities and criminal crime secrets", belong to the scope of confidentiality. Thus, any any criminal case, may be the secret object, which can be the public security organ refuses to meet with a lawyer suspects and requirements to provide legitimate excuse. In practice, the public security organ and the people's Procuratorate is accordingly for criminal suspects and to meet with a lawyer hired to set obstacles. Obviously, it is very difficult to correct interpretation.

　　(two) a logical explanation
The so-called logical explanation, refers to the deliberate criminal law legislative background, purpose, history and other factors, the interrelated legal provisions in laws and other provisions of the criminal procedure law, clarify the interpretation of the true meaning of using the method of logical reasoning to. Characteristics of logical explanation is not rigidly adhere to the legal provisions of the literal meaning, with a strong value judgement. The logical interpretation of which can be subdivided into the following:

　1 system interpretation
The so-called system interpretation, according to the provisions of the criminal procedure law status in the criminal procedure law of according to the coding, chapter, section, article, paragraph, items, before and after the relationship between the position, contact the relevant law meaning, interpretation method to clarify the legal terms of will. System interpretation aims to avoid interpret out of context, in order to maintain the unity and integrity fluid governed by the criminal procedure law. The system is based on the legal interpretation methods, is a complete system consists of a number of concepts, principles, system according to certain logical relationship between various legal provisions which, location and before and after the relevant legal provisions, there are some logical relationship, therefore, when we interpret a law, can not but consider this logical relationship the existence of. (31) system used the occasion of a lot of interpretation requires the presence of the criminal procedure law of our country, the exercise scope such as "Criminal Procedure Law" provisions of article sixty-third of the citizens "right" over "is a crime or is discovered immediately after committing a crime". About "a crime" meaning, if only the literal interpretation, may generate the complex understanding: the narrow sense of "a crime refers to a crime" to "have", but has not yet reached the accomplished state; and the generalized "a crime" is refers to the crime beyond the criminal intention into tangible implementation stages preparation for a crime, therefore, should also be included. Effects of different understanding of the personal rights of citizens is obviously, because if that "a crime" includes the preparation for a crime, will virtually expand the scope of the exercise of the right of seizure and delivery. Then, the legislation of the so-called "what is the true meaning of a crime" a word? To answer this question, must adopt the systematic explanation method, seven cases of public security organs associated with law sixty-first stipulation to exercise the right of detention, the first is "is preparing to commit a crime, a crime or is discovered immediately after committing a crime", in the provisions, "are prepared to crime" and "being implemented the crime" is respectively stipulated that, "a crime" does not include the preparation for a crime. As the two articles before and after the same law association, as to the legislative technology, the use of the same word should be the same with meaning. Therefore, sixty-third "a crime" means also should not include the preparation for a crime, it is explained using system interpretation of results.
Moreover, China's "criminal law" the forty-seventh regulation, those who know the circumstances of the case, have the obligation to testify. Therefore, any person who, in addition to the physical defects and spiritual, as long as you know the circumstances of the case, should be a witness in criminal procedure law, enjoy the rights and obligations of the witness to give all. In a criminal case, the victim and the defendant is aware of the circumstances of the case, then, does this mean that the defendant and the victim should also become the witness? With the provisions of the criminal procedure law article eighty-second, the defendant and the victim was listed as one of the parties, and the witness list. Hereby, the criminal procedure law of our country witness concept is the exclusion of the defendant and the victim and other parties, with the British and American will be the victim and the defendant were listed as a witness for the defense and prosecution witness different.
Example: China's "criminal law" the 124th stipulation: "the investigation of criminal suspects arrested after the period of detention shall not exceed 2 months. The complexity of the case, the case cannot be concluded within the time limit, an extension of 1 months may be approved by the people's Procuratorate at the next higher level. From the law in criminal procedure law position, it is located in the criminal procedure law of second section ninth "investigation", according to the systematic explanation method, it should be applied only to the investigation stage (before the investigation, transferred to the procuratorate for examination and prosecution). However, in judicial practice, the public security organs often goes against the system of interpretation, arbitrary expansion of the scope of application of the provisions of. For example, in the stage of review and prosecution, procuratorial organs in the grounds of insufficient evidence of the case to the public security organ for supplementary investigation, in accordance with the provisions of the 140th criminal procedure law, for supplementary investigation cases, shall complete the supplementary investigation within 1 months. But the public security organ in the supplementary investigation process, found the suspect and other serious crimes, the criminal law article 124th "the complexity of the case" as an excuse to the upper level people's Procuratorate for supplementary investigation on 1 month period to be extended for 1 months. This is clearly contrary to the method system of interpretation. Because the criminal procedure law, criminal procedure law article 124th and 140th belong to different sections, the former is applicable to the investigation stage, the latter is applicable to the stage of review and prosecution, from system to explain the terms, provisions concerning the investigation detain deadline extension of the criminal procedure law, is not suitable for supplementary investigation period.

　The 2 interpretation of history
The so-called historical interpretation, refers to the legislators in the development of criminal procedure law is based on the historical background, including facts, circumstances, value orientation, objective, method of interpretation to infer the legislators mean. Information concerning the legislative history and legislative process, such as draft, review records, legislation reason books, is an important basis for historical interpretation.
Our legislation does not establish with the reasons of legislation system of legislation, other materials such as review record is not open, the legislature passed a law by the draftsman for legislation explanation is very simple, this gave the historical interpretation methods difficult. But this is not to say that can't use the method of historical interpretation to infer the meaning of the legislation. (32) for example, China's "criminal law" the eighteenth paragraph second: "the crime of corruption and bribery, national staff malfeasance crime, the State functionary carry illegal detention, torture to extract confessions, retaliation against, illegal search encroaches upon the citizen personal rights crimes and violations of the democratic rights of citizens crime, the people's Procuratorate investigation. For the case of state functionary carry other grave crimes committed, need to be handled directly by the people's Procuratorate, the people's Procuratorate at the provincial level and above, by the people's Procuratorate investigation." The terms caused great controversy in Criminal Procedure Law promulgated and implemented, the focus of the disputes is the crime of infringing the democratic rights of citizens are also required to "state functionary carry" as the premise, because, the legislation on the expression is "working people who used his powers to the implementation of state organs...... Criminal violation of civil rights and criminal violations of the democratic rights of citizens". The so-called "and", grammatically, is the expression of conjunctions, parallel relationship but, "violate the civil rights of crime" and "what is a criminal violation of civil rights," this phrase in parallel, or "state functionary carry...... Criminal violation of civil rights, "this phrase parallel? Only use the * * * * release, unable to eliminate ambiguity. Because of this, some scholars advocate that violate the civil rights of crime, must also be state functionary carry as the premise; but some scholars think that the clause requires only a people's Procuratorate accepted criminal violation of civil rights, must take the State functionary carry as the premise, as for the infringement of citizens' democracy the criminal right, not only is the implementation of the national staff, also may be the average citizen to. Regardless of whether the subject of crime of state functionaries, under the jurisdiction of the case to the procuratorial organ. (33) a time unable to agree on which is right in theory, in practice also controversial. So, what is the true meaning of legislation? Therefore, must use the method of historical interpretation, from the legislative drafting the legislation explanation to infer the meaning of the legislation. Director of the Legislative Affairs Commission of the Standing Committee of the National People's Congress, comrade Gu Angran made in March 21, 1996 at the eighth session of the National People's Congress on the fourth session of the "about {of the people's Republic of China Criminal Procedure Law (Draft)" in the description), "a special prosecutor investigated cases range" modifications described, he pointed out that: "according to the public prosecutor, the division responsible for the three organs, the principle of mutual restraint, prosecutor investigated cases range, limited primarily to the state personnel who take advantage of duty crime. Therefore, the provisions of the draft, the crime of corruption and bribery, national staff malfeasance crime, the State functionary carry illegal detention, torture to extract confessions, retaliation against, illegal search, criminal violation of civil rights, and the crime of infringing the democratic rights of citizens, the people's Procuratorate investigation. As for other criminal cases by public security organs, investigating, prosecuting the accused. So, one is beneficial to the procuratorial organs concentrate, crime of corruption and bribery, national staff malfeasance crime investigation, it is of great significance to strengthen the anti-corruption struggle; two is the procuratorial organs can strengthen the supervision on the investigation of public security organs, play the role of supervision of procuratorial organs." Obviously, made by Comrade Gu Angran that "legislative" clear that the criminal procedure law amended to adjust the prosecutor investigated cases range of main idea is "prosecutor investigated cases range, mainly limited to the state personnel who take advantage of their office, the crime" is "in favor of procuratorial organs concentrate, crime of corruption and bribery, national the staff of duty crime investigation, it is of great significance to strengthen the anti-corruption struggle". Accordingly, should be on the eighteenth criminal law explanation: violations of the democratic rights of citizens crime, must also be state functionary carry premise.
Example: China's "criminal law" sixty-first article seventh paragraph: "there are people who commit crimes, crime, gang crime has great suspicion of" criminal suspects, the public security organ may advance detention. The legislation does not provide "from one place to another, repeatedly committing the crime, gang crime" meaning, practice tends to expand the interpretation of its applicable scope, according to the Ministry of Public Security issued the "public security organ for criminal case procedure regulations" provisions of article 110th, the so-called "people who commit crimes", be interpreted as cross city, county jurisdiction for the crime in the residence after committing the crime, or escape to outside the city, county, continue to commit the crime; the so-called "serial" is interpreted as more than three times the crime; the so-called "gang crime" is interpreted as more than two people together. According to this interpretation, the majority of the complex cases can be detained; and due to the provisions of the criminal procedure law, the major suspects flee hither and thither, repeatedly committing the crime, gang crime, the examination and approval of the arrest time may be extended to 30 days, resulting in the majority of cases of criminal detention was extended to 30 days, the proportion accounted for 65% of all cases of detention. (34) this is a serious departure from the detention as a temporary enforcement purpose. Such interpretation is correct? Whether the original intention of the legislation? From the perspective of the legislative history point of view, modify the criminal procedure law in 1996, in order to strengthen the protection of human rights in criminal proceedings, abolished in practice long used by detention review measures, at the same time, the reasonable part absorbed into the criminal procedure law, the past is suitable for a review of the circumstances prescribed in some cases for the application the object detention. Comrade Gu Angran "about 'the people's Republic of China Criminal Procedure Law (Draft)" that' the first part of the "perfect compulsory measures" that, when the main thinking about revising a review is: "a review of detention time is long, and not the other judicial organs, decided by the public security organ, the lack of supervision and restriction mechanism, not in conformity with the relevant provisions of the criminal procedure law. In order to further strengthen the construction of socialist democracy and legal system, to better protect citizens' rights of the person, will be a review in fighting crime has the actual needs of the content, the absorption to the criminal procedure law, supplement of criminal compulsory measures, no longer retain a review as an administrative enforcement measures. Mainly, to the neglect of real name, address, identity and spread of crime, crime, gang crime many of the criminals or suspects, the public security organ for examination of the past, now changed to the public security organ may first detain. And the provisions of these objects, the duration of detention may be extended to 30 days." By using the method of historical interpretation, can infer the legislator's original intention is "to strengthen the construction of socialist democracy and legal system, to better protect the personal rights of citizens", based on this, it will be "a review and crime fighting with the actual needs of the content, the absorption to the criminal procedure law". Therefore, the so-called "people who commit crimes", "repeatedly commit crimes", "gang crime" meaning, must be strictly interpreted, in order to prevent the expansion of application; interpretation of the results, should be the "people who commit crimes repeatedly commit crime, gang, the criminals or suspects detained" is the number of cases in the detention of the total cases should be accounted for a low proportion, that should be the exception, not the norm. This is in accord with the original intention of legislation interpretation.

　　The 3 objective interpretation
The so-called objective interpretation, refers to the criminal procedure law, interpretation of the true meaning of criminal law provisions clarify. For example, China's "Criminal Procedure Law" provisions of article twenty-eighth, judges should be avoided in the statutory circumstances. However, the meaning and scope of "judicial personnel", the criminal procedure law does not expressly stipulated, this caused some ambiguity in practice, such as in the procedure for trial supervision of judicial personnel, whether a case should be applied to avoid the court appeal? Some people think that, before the procedure for trial supervision, responsible for reviewing the retrial conditions on the court the judge should be excluded from the trial personnel, because they do not actually involved in the trial of cases. However, the author thinks that, from the "criminal procedural law" the twenty-eighth purposes, mainly in order to prevent the judicial personnel due to the existence of interest with the case without a fair trial, therefore, from the point of view of the purpose of legislation, can not be too narrow understanding of "judicial personnel", responsible for reviewing the retrial conditions on the court the judge it should be included in the "judicial personnel should avoid" category, because, although they are not directly relates to the rights of the parties filing and punishment, but the realization of the right of action plays a decisive role, and will eventually relate to the court's entity Ref. 35.
Example: in front of the Liaoning communications administration shut down Shenyang's first private report website -- "China report net" case. Communication Management Bureau of Liaoning province made the basis for administrative penalty is that the site "relates to e-mail, accept masses to report information to the relevant departments, in violation of the" provisions of the criminal procedure law of the people's Republic of China "in article eighty-fourth, 'any unit and individual to find the facts of a crime or a criminal suspect, has the right and obligation to the public security organs, people's Procuratorate or the people's court or report. The individual has no right to accept the citizens' report and verify the report content, belong to illegal behavior". However, this interpretation is contrary to the legislative purpose of "Criminal Procedure Law" in article eighty-fourth. From the legislative intent, "criminal procedural law" the eighty-fourth is mainly for the rights and obligations to ordinary citizens to report a crime, is to encourage and protect ordinary citizens to actively fight against crimes, at the same time, specialized state organs public standard, inspection, law, its citizens have the obligation to report the case review and acceptance, to to prevent the public prosecutor, the legislature is not as negative. While the Liaoning communications administration is the objective interpretation of "person is not competent citizen report and to verify the report content". It belongs to the improper purpose interpretation.

　The 4 expanding interpretation and restrictive interpretation
The so-called extended interpretation, refers to the language of the criminal procedure law literally too narrow, the included cases excluded, contrary to the original intention of legislation, and the expansion of its literal meaning, the true meaning of the criminal law; and the so-called restrictive interpretation, refers to the language of the criminal procedure law the literal meaning is too wide, this should not apply to cases included, inconsistent with the legislative intent, so will the semantic constraints in the core part, the true meaning of the criminal procedure law. Expanding interpretation and restrictive interpretation to the legislative intent for reference, "a comprehensive interpretation of a widespread importance part, the significance of the core part of judge interpretation, non arbitrary, but should consider the purpose of law". 36.
A restrictive interpretation, is controversial in theory, in the practice of criminal procedure uses are also common. For example, German criminal procedure law prohibited to deceive the method of interrogation. The theory is that, to "deceive" as a restrictive interpretation, such as simple as a ruse, should be generally recognized as allowed, but if you knowingly and deliberately lying, for example, is prohibited, questioning, investigators deliberately deceive the defendant, the important evidence of the crime has been found, cause the defendant guilty confession. However, when the police told the defendant to custody, but silence is not to inform the telephone conversation has the bad to legitimate monitoring measures, will not deceive behavior, at the most is the defendant's ignorance. (37) Moreover, in Germany refused to apply testify, journalists are a kind of subjects. But the "journalists" meaning, should be restrictive interpretation, does not include all the books printing industry, the advertising industry, radio propagation page and all just short positions, such as the occasional papers of the author; on the contrary, anonymous reader's letters are designated editing part, so the journal editorial department as someone who had known, without open the letters'. 38.
In Japanese criminal litigation practice in applying restrictive interpretation method for example. Japan's "criminal procedural law" the thirty-ninth paragraph third: "the prosecutor, procuratorial affairs officer or judicial police officers (refers to the judicial police officers and judicial inspection) for the implementation of investigation and when necessary, limited by the prosecution before the first paragraph, meeting or accept, to date, place and time." But had to limit the rights of suspects for defense. What is meant by "for the implementation of the investigation and necessary", the investigation organ usually understood as "to the investigation has come to an end, even if the defendant meet, also won't have any effect on the investigation". But according to this understanding, the suspect's right to defense will obviously restricted. In 1978 the Japanese Supreme Court precedent said: "as the principle of the investigation organ with the suspect with application in the advocate, not given, whenever he met by chance, in are interrogating suspects, survey, Inspection Certificate in the present necessity due to disruption of the obstacle detection a very significant occasions, should be in agreement with the defender, as quickly as possible with the specified date, take measures to enable the suspect to protect themselves and to meet Shang Qia and defender." In this way, the Japanese Supreme Court will "for the implementation of the investigation and necessary" is defined as "due to the interruption occurs obstacles significant occasions", which helps to prevent the suspect procedural rights is improperly hijacking. 39.
In our country, there are successful examples of using the restrictive interpretation, China's "Criminal Procedure Law" provisions of the two forms of bail: Life Insurance and property rights, however, the legislation regarding the specific form of the lack of provisions of the margin, practice in the securities can be used as a deposit, controversial. Therefore, "the Supreme People's Court on the implementation of 'of the people's Republic of China Criminal Procedure Law' interpretation of several issues" seventy-first use restrictive interpretation method, the deposit will be limited to the form of cash, "the decision of a people's Court on the defendant to obtain a guarantor pending trial, according to the circumstances of the case, may be ordered to pay the deposit. Margin limited to cash."
Whether the criminal procedure law by using the method of expansion of the interpretation of the theory, it is still controversial. The criminal procedure law and criminal law as criminal law, both have many common, for example, were collected for legal principles, namely what acts constitute a crime and punishment, to, as well as to these crimes by what process can be investigated, all of this, must by lawmakers to make detailed provisions. "The purpose of doing so is to avoid any arbitrary acts, so that the accused person can be self defense, to prevent personal conviction, unfair or wrong judgment, avoid the criminal by the court." But, "said that although the legal principle is applicable to criminal law, also applies to the procedural laws, but this principle to the application, the strict degree is not the same." (40) which is mainly reflected in: "to ensure the best criminal justice, in the final analysis is conducive to 'by the jurisdiction of the court of people' procedural criminal law, can be expanded to explain; on the contrary, substantive criminal law provisions on the crime and penalty should be as strict interpretation, at least it is not conducive to the criminals within the limits of strict interpretation should be." (41) this is because, "substantive law, most of them are not conducive to the crime person, should be a strict interpretation of the substantive criminal law does not apply; practiced in the prior to the entry into force of the crime (non retroactivity of criminal law effect entity); in contrast, formulate procedural law in order to ensure correct justice, therefore, the legal principle viewed as a beneficial to criminal law, it can be applied, and can make the interpretation of its expansion." 42.
The expansion of the interpretation of criminal procedure law also has its limits, it is only in favor of the accused (a criminal suspect, the defendant) carried out under the premise, namely in the choice of cases, should be selected to be the favorable interpretation method, when the number of interpretation conclusion difficult trade-offs, is should be beneficial to the accused's results, in order to reflect the demand of human rights protection. "In the reason, reason, especially to maintain the highest interest justice requirements for expansion explanation to the legal form, legal form can be expanded to the narrow terms; in case of doubt, the court should move towards the most conducive to the accused person direction expansion of application of these laws, that is to say, we should towards a more protected from prosecution right direction expansion explain these laws." (43) for example, the French "Criminal Procedure Law" article 203rd of this is a "crime" jurisdiction rules, because this provision will allow that there is a certain relationship between each other, but the number of crimes under normal circumstances should be different court trial to trial by the same court, therefore, is a an exception to the normal rules of jurisdiction with respect to it. However, the French court case to this provision as a simple declarative rules, and will extend to the outside the provisions of the literal meaning. As long as between misdemeanor has close connections with similar provisions of laws, regulations court will apply this clause. 44.
However, in the judicial practice of our country, a reality that existed for a long time and trend is to explain the expansion of the public prosecutor, the authority of law three, to maximize the expansion; and for criminal suspects, defendants and their counsel's right of restrictive interpretation, objective is to limit its defense ability.
Example: China's "criminal law" the thirty-sixth paragraph first: "lawyers of the people's Procuratorate date, consult, extract, copy the file documents, technical identification of material, can meet with the criminal suspect in custody and communication." The article is about the defenders marking the right. Marking the right is an important right of a defender, marking the right can be protected and can be guaranteed in a large extent, directly determines the effect of the exercise of right to defense. According to the provisions of the law, in the stage of review and prosecution, defense man marking the right in the people's Procuratorate, the defender may consult, extract, copy the file material includes litigation documents and technical verification material. So, what is the "litigation documents", "the technical verification material"? "The people's Procuratorate" criminal procedure rules 278th to explain: "litigation documents include file decision, approved the arrest warrant, warrant, warrant, the book, the prosecution submissions made to take coercive measures and other investigative measures and placed on file and draw the prosecution procedure document." "The technical verification materials including forensic identification, forensic psychiatry, forensic technology identification by qualification personnel on the people, goods and other related evidence material identification and records identification conclusion formed identification documents." According to this interpretation, the scope of the defenders marking the right is greatly limited, counsel prosecution stage can access files in the range examined, in fact is very limited, but not by marking was favorable to the suspect (that can prove his innocence, with lighter punishment or exempted from punishment, reduce, the material) so, the defense counsel, ability was substantially restricted. Obviously, this kind of restrictive interpretation is improper.
5 of course, interpretation
The so-called natural interpretation, is refers to the criminal procedure law does not express a certain matter, but in formal logic, specification and the attributes of things and of course the truth, to bring this matter interpreted to include interpretation method applicable range in the provisions of. For example, Japan's "Criminal Procedure Law" does not expressly appear mystery of how to deal with, but this did not affect the Japanese judicial organs in mystery made in favor of the defendant's decision, which is viewed as the principle of presumption of innocence, of course requirements. (45) the German suspected crime but light principle (that is, when in doubt, should be conducive to the defendant decided) cannot provision, but it is indirectly via the responsibility principle and law of criminal procedure 261st derived course conclusion, because the court after making sure that the guilt of the accused person, in order to form a judgment, at this point any reasonable doubt on the crime elements must be hindered the criminal judgment. 46.
Of course is generally explained by "weightlifting with clear light, for light to heavy" rules. For example, under German law of criminal procedure, judicial act is invalid for the no action ability person. At the same time, the law also stipulates that, unless there is a statutory provisions, or the defendant shall be present (230th). However, in the absence of action, action is invalid from the beginning of Germany, the dispute in theory circle and practice circle have. Theory holds that case deny the court should take the initiative to review the present obligation is a prerequisite in lawsuit idea, it is not correct. Because, if only because the incapacitated will make the procedure caused by defective, error, resulting in litigation act is invalid, then, the defendant does not appear, there is more reason to cause procedure defect, error, the action should be invalid from the beginning. (47) this is a kind of "give light to heavy" of course interpretation method.
Example: a work's friend told the author consulting a case, the causes of things is the procuratorate anti-corruption department to be suspected of bribery by detained a suspect in custody, but after the expiration of the time limit, and not found enough evidence to arrest, so the procuratorate can only choose to "put people". However, the anti-corruption department investigators do not "willing", because, according to the evidence and previous experience of existing, the possibility that the suspect is great, but suffer from detention period is too short, can not be carried out more fully the to seize more evidence, therefore, investigators want to detain the suspect, in order to have more time to collect evidence. However, they also worry about the same case with repeated detention of suspects will be in violation of the provisions of the criminal procedure law concerning detention, therefore, to find my advice. In the conversation, the prosecutor has been trying to persuade me: they searched the relevant articles in the criminal procedure law, and did not find the same case repeatedly prohibited to detain suspects expressly, this Is it right? Means that it is legal to do so? I expressed my understanding of his situation, but also made it clear to him that, despite the current criminal procedure law does not clearly prohibited provisions, but because this is contrary to the principles in the investigation of the case unit (the so-called case unit principle, is the implementation of criminal behavior must be expanded, the case for the units and unit of the same a case of prohibition, ban a separate investigation investigation. The case unit principle is a basic principle in modern criminal procedure law. The implementation of action, especially the compulsory measures, are in the case unit principle as the premise, otherwise there is no need to specify conditions and the deadline for every kinds of compulsory measures. According to the method of course) interpretation, which is still illegal.
6 opposing interpretation
"Against interpretation, refers to the positive express provisions of the criminal procedure law, explain the method derives its negative meaning. For example, Japan's "Criminal Procedure Law" article 198th paragraph first acknowledged the investigation organ also suspects to trial jurisdiction in the text, in the attached items added, "the suspect, in addition to being arrested or detained, may refuse to subpoena, or cited after withdraw at any time". As a general case will this pair of items as in the arrest, detention in the interrogation room suspect interrogation obligations. The move by the legislation that investigation organs have the authority to trial suspects, deduced the opposite meaning, namely the suspect to the interrogation room interrogation obligations, belongs to the typical against interpretation. Moreover, China's "Criminal Procedure Law" 122nd stipulates: "any person as a psychiatric evaluation of criminal suspects during the deadline." For this, six organs "Regulations" stipulates that the thirty-third way: "122nd of the criminal procedural law stipulates: 'during the psychiatric appraisal on a criminal suspect shall not be included in the time limit for handling the case.' According to the above provisions, the criminal suspect, defendant in custody cases, in addition to psychiatric examination time for criminal suspects and defendants, regardless of people handling period, other identification time shall be included in the deadline." "Regulations" by "excluding for psychiatric evaluation of criminal suspects during the deadline" derived from the opposite meaning "-- in addition to psychiatric examination time for criminal suspects and defendants, regardless of people handling period, other identification time shall be included in the deadline", namely the opposing interpretation method.
Example: China's "criminal law" the twelfth stipulation: "without the approval of the people's court to sentence, no person shall be found guilty." This article is about whether the provisions on the principle of presumption of innocence, the theory on the dispute. The authorities explained, "in accordance with the" law of criminal procedure ", the procedure is not 'presumption of innocence', not 'presumption of guilty', but take facts as the basis, take the law as the criterion." (48) "we resolutely oppose the presumption of guilt, but not the western countries that the presumption of innocence, but rather to the fact as the basis", Chinese criminal procedure law "is not specified, the court convicted former presumed innocent. Because, if such stipulation, before the court presumed innocent, so the investigation organ why investigation?! Why take compulsory measures?! Since the presumed innocent, then why do some more procuratorial organs prosecution?! Why should the court trial?! We adhere to the facts as the basis principle, the court convicted former, can not be said to be criminals, but also cannot say is not suspected of a crime, but to seek truth from facts, investigation, objectively, guilty, guilty to collect crime, crime evidence, whether the light crime, by the court according to the facts to trial to determine." (49) but, if we use against interpretation method, it will draw the opposite conclusion: China's "criminal law" the twelfth is about the principle of presumption of innocence expression. Because, the criminal suspect, defendant's legal status in criminal proceedings in only two: guilty, or not guilty. If you are not sure is not affected by the defendant guilty verdict of guilty in law, is of course can be presumed innocent in law. Since the "criminal procedural law" the twelfth stipulation: "without the approval of the people's court to sentence, no person shall be found guilty." So its opposition to explain is, "without the approval of the people's court to sentence, any person who is innocent", this is in line with the principle of presumption of innocence is not expressed and purport. Visible, the criminal procedure law of our country has established the principle of presumption of innocence.
The 7 constitutional interpretation
The so-called constitutional interpretation, is refers to the interpretation method in accordance with the high-level interpretation of the constitution of the criminal procedure law of low order. Because the special significance of constitutional interpretation, criminal law protection is related to many provisions of constitutional basic rights, when necessary, citing the Constitution and its spirit, not only can prevent the prosecution of basic human rights are not frequently, unified can also safeguard the basic value of a country's legal system. For example, the German "Criminal Procedure Law" eighty-first article a provision, to find out the truth of the matter, allowing the implementation of physical examination for the defendant when necessary. According to the provisions of the literal, because of a small shop theft by the defendant for the implementation, can be significant, on his body will bring the serious burden of medical examination, because, perhaps only in this way, can we find out whether he suffered from mental disease or other disease can take leave of one's senses, thereby excluding the ability of his responsibility and his punishment. However, check the defendant power of body, and by the German Basic Law article first and the provisions of article twentieth "appropriate" principle, so the only to prove whether the defendant guilty of relatively minor behavior, do not allow the implementation of major physical examination. If this is the case, the search for truth must back to protect the body intact. If the resulting in not sure whether the accused is responsibility, must be in accordance with the "doubts in favor of the defendant" principle in the criminal procedure law, acquitted him. (50) this is the correct use of the Constitution (the corresponding principles) interpretation of a classic example of the criminal procedure law.

　　(three) the analogical interpretation
The analogy to explain, is because the criminal procedure law itself loophole, to the fact that some procedural law, the lack of relevant legal norms, so the analogy which is most similar to the legal provisions, the so-called "similar cases treated in the same way". Analogy is a widely used in the field of civil law explanation method, however, in the field of criminal law can use analogical interpretation is a controversial topic. In 1979 Chinese criminal law has stipulated as "guilty" mechanism of the analogy system, but, in view of the foundation, loose legal principle of crime and punishment. Therefore, when the 1997 amendment to the criminal law abolished the analogy system. Based on this, some scholars advocate in the field of criminal procedure also should be forbidden analogy. "Similarity plays an important role in the civil judgment, it is the application of analogy based on complementary method, analogy is widely adopted by many countries of civil case court loopholes. But can not be used in criminal adjudication, after revision of China's criminal law and criminal procedure law has prohibited the use of analogy method. This is decided by the nature of criminal cases". (51) but in fact, the analogical interpretation in the field of criminal law and criminal procedure law in effect to be confused, it is a kind of misunderstanding, in the field of criminal law abolished analogy, does not mean that the criminal procedure law also should be forbidden to analogical interpretation. This is because, as mentioned before, the criminal law as a prohibitive norms, most of them are not conducive to the crime, the legislative characteristics decide, in the criminal law by analogy can only lead to unidirectional "convicted" results, not to release the criminal efficacy, stability and to the detriment of punishment method. In contrast, the development of procedural law (Criminal Law) in order to ensure the correct justice, therefore, this legal principle is seen as favoring the criminal law, therefore, "analogous to substantive criminal law does not allow the explanation, in the procedure of legal interpretation is not prohibited, of course not prohibited from reasoning interpretation of procedural law." (52) for the fact of procedural law of criminal procedure law does not expressly provided for, as long as it is beneficial to the accused, should be allowed to apply by analogy to the most similar provisions processing.
For example, in Japan, mandatory urine, blood and breath, swallowing acquisition as mandatory investigation measures, criminal procedure law does not expressly provide, in practice has been identified in the applicable mutatis mutandis measures; and for monitoring, inspection is applicable mutatis mutandis, this is the application of analogical interpretation results. (53) in Germany, into the monitoring of plainclothes police posing as happening in practice, so as to elicit the truth of the crime case, this situation is not involved questioning behavior, but the case that Germany should apply by analogy "criminal procedural law" in article 136th of the first interrogation rules. (54) in addition, the German "criminal procedural law" in article sixty-ninth of the regulations of witnesses (its content is required on the witness of the facts of crime know, stated, the so-called natural presentation principle -- the author notes) can also be applied by analogy to interrogate the defendant, the investigators before individual specific interrogation for details, the defendants have the knowledge of the facts of the crime, state them; at the same time, should give the defendants for his crime suspect defending opportunities, and the favorable facts to be proved. (55) again, about the nullification of the procedural act that German criminal procedure law, circle, the capacity for action is one of the elements of effective action, in order to display the behavior ability is the characteristic representation. Therefore, for the lack of meaning of that act, if the defendant knowingly deceive results, then the action shall be void, which is deemed to have been included in the provisions of the criminal law of article 136th, paragraph a. The criminal procedure law 136th article a the provisions prohibiting illegal interrogation, is to limit the national investigation, here is applied by analogy to cheat the defendant. At the same time, due to the stress and compulsory litigation practices should also apply the criminal law article 136th, regarded as invalid, and this is the analogy to explain the results. 56.
Example: China's "criminal law" the 128th stipulation: "the suspect does not tell his true name, address, the identity is unidentified, investigation detain deadline checking computation since the day of its identity, but do not stop the crime investigation." This article is mainly used to solve the problem of re computing investigation after arrest custody period. However, the Ministry of public security, public security organs in the "provisions" criminal case procedure specified in section 112nd: "the suspect does not tell his true name, address, identity is unknown, check for approval of arrest within 30 days can not, by the public security organ at or above the county level shall be responsible for the approval of the period of detention of self-examination, calculated from the date of the identity, but shall not suspend investigation of the criminal behavior." Obviously, "Regulations" article 112nd is in custody "criminal suspect does not tell his true name, address, unidentified" situation, applied by analogy "Criminal Procedure Law" article 128th, its purpose is to re calculation method investigation detain deadline 128th criminal procedure law stipulated after arrest, analogy suitable for the arrest of former detention period. However, because of the analogy interpretation is not conducive to the suspect, in violation of the criminal law by analogy to explain the premise, therefore, belongs to the improper analogizing interpretation.
　　
　　

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Notes and references　
 
   To see: "the hermeneutics of civil law" section to Japan, Liang Huixing editor: "civil and Commercial Law Review" (sixth volumes), Law Press, 1997 edition, page 354-356.
We see Professor Zheng Chengliang speech at Jilin University: "the methodology of jurisprudence", the law thought network http: / / www.law-thinker.com
The Chen Aie: "K Larenz '' introduction of methodology of", the commercial press 2003 edition.
I see [Germany] s: "the methodology of jurisprudence", translated by Chen Aie, the commercial press 2003 edition, page seventy-seventh.
The leading.
I see it.
And see Lin laifan: "from the constitutional norms to regulate the Constitution: a normative constitution study preface", Law Press in 2001 May edition, page thirty-ninth.
Chen Guangzhong: ", research status and development trend of the criminal procedure law", "law" in 1996 second period load.
Chen Guangzhong: "see" prospects "procedural law of market economy and criminal law", "China carrier in 1993 fifth.
We lead.
We can Yanyou: "Criminal Procedure Law" (Second Edition), publishing house of law 2004 edition, page nineteenth.
To see the lead, forty-first pages.
Chen Jinzhao: "people steering and practical law the third road" of legal hermeneutics, Liu Shiguo editor: "basic questions" to explain the law, Shandong people's publishing house, 2003, pp. 252-253.
Chen Jinzhao: "so, legal hermeneutics", China University of Political Science and Law press, 2006 edition, page 170th.
Engage [Germany] Thomas Weigend: "criminal procedure" in Germany, Yue Liling, translated by Wen Xiaojie, China University of Political Science and Law press, 2004 edition, page ninth.
In [Germany] Thomas Weygand: "" in Germany and Japan, the comparison of criminal litigation seminar "keynote speeches and meetings" (on), load "law" 117th series.
In leading,, Ninth pages.
And in this sense, said the investigation, prosecutors for criminal procedure law seems more accurate quasi subject of interpretation.
See, said lead, 172nd pages.
See Xu Jinghui, Cheng Lifu shout: "criminal law of Macao", the Macao Foundation Press, 1999 edition, page third.
(21) see [Germany] Joachim Herman: "'the criminal procedure code of Germany' translation of introduction", set "German Code of criminal procedure", translated by Li Changke, China University of Political Science and Law press, 1995 edition, page sixth.
(22) the so-called "restorative justice", "negotiated justice", "peace and justice", is refers to the light injury case, in accordance with the applicable conditions of the negligent crimes, juvenile crime and other minor criminal cases, the relevant judicial authorities start, participation and supervision, presided over by the community comprehensive management mechanism, the victim, the offender is the case processing reach a voluntary agreement, the perpetrators of non penalization or light punishment by the judicial organs, so that perpetrators through proactive behavior start with a clean slate, the victim's material and spiritual loss timely, full compensation, and then restore the social relations, resolving social contradictions, maintaining social stable.
(23) refer to shout.
(24). (21).
(25) (21).
(26) quoted from Sun Xiaoxia: "basic principles of administrative law", "rule of law" carry on (2), Hangzhou University Press, 1997 edition.
(27) see Chen Weidong editor: "investigation report" issues in the implementation of the criminal procedure law, Chinese Fangzheng press, 2001 edition, page 142nd.
(28). See Synonyms at Zhang Mingkai: "criminal law" (on), Law Press, 1997 edition, page 33-34.
(29) Zhang Wenxian editor: "jurisprudence", Law Press, 1997 edition, page 378th.
(30) see [Germany] krauth · Luo Kexin: "Criminal Procedure Law" (twenty-fourth Edition), translated by Wu Liqi, Law Press 2003 edition, page 243rd.
(30). See Synonyms at Liang Huixing: "the referee method", Law Press, 2003 edition, page eighty-ninth.
(32) see. (31), pp. 216-217.
(33) see Xu Jingcun editor: "Criminal Procedure Law" (bottom), Law Press 1997 edition, page eighth.
(34). (27), thirteenth pages.
(35). See Synonyms at Liu Ning: "improve the withdrawal system from three aspects of" carrying "procuratorial daily," March 24, 2004.
(36) Yang Renshou: "the methodology of jurisprudence", China University of Political Science and Law press, 1999 edition, page 152nd.
(37). (30), 268th pages.
(38). (30), 284th pages.
(39) see [Japan] Suzuki Shigetsugu: "the problem" characteristics and interpretation of criminal procedure law of Japan's, load [Japan] Nishihara Haruo editor: "the Japanese criminal law formation and characteristic", translated by Li Haidong, publishing house of law, 1997 edition of Japan joint publication written hall.
(40) [Law] Kaston Stefani: "the French Criminal Procedure Law", translated by Luo Jiezhen, China University of Political Science and Law press, 1999 edition, page tenth.
(41). (40), Twelfth pages.
(42). (40), pp. 10-11.
(43). (40), Twelfth pages.
(44). (40), thirteenth pages.
(45). (39).
(46). (30), 142nd pages.
(47). (30), 191st pages.
(48) in November 21, 1980, December 10th, Zhang Youyu, Wang Hanbin an interview with Xinhua News Agency reporters.
(49) Hu Kangsheng, Li Fucheng editor: "criminal procedure law interpretation" of the people's Republic of China Law Press, 1996 edition, page fifteenth.
(50). (21).
(51). (31), 158th pages.
(52). (40), Twelfth pages.
(53) see [Japan] Taguchi Mochi: "Criminal Procedure Law", Liu Di, Zhang Ling et al, Law Press, 2000 edition, page seventy-seventh.
(54). (30), 234Th pages.
(55). (30), 229th pages.
(56) see. (30), 234Th - 235.