How to study the criminal law

                      Chen Xingliang

   How to study the criminal law, this is a benevolent see benevolence, the wise see wisdom of the problem, each criminal law scholars have their own experiences. Here, I want to say something about personal experience. Mainly involves the following three problems: one is the law and the legal relations; two is the relationship between the general provisions and the specific provisions; three is the relationship between the theory and case. My experience is: studying criminal law, we should handle well the three relations. 　
　　

A, law and legal relationship
　　

   In many cases, we are in fact not differentiate between the law and jurisprudence. For example, when asked if we learn what professional, we are the professional criminal. The criminal law includes criminal law, including criminal law theory. But the law and jurisprudence is different. This Law refers to the legal provisions, legal learning cannot do without the law or legal provisions. The law is one of the most basic things, but to the law itself we still need for further analysis, such as the law and legal norm is not the same.According to the German criminal law expertsBindingPoint of view,In the criminal law, the provisions of the law is the act constitutes a crime, the law is in the law behind the forbidden order.For example, the provisions of the criminal law on the murder, the murderer to place ten years imprisonment, life imprisonment or death. This legal provision set manslaughter elements, and the specification is prohibited. Therefore, binding, in Criminal Law refers to the violation of norms, is a violation of prohibition, not to violate the law; illegal, legal provisions, is consistent with the rather than violate. That is to say, only in conformity with the law of homicide components, just talk to go up is a violation of prohibition of legal norms. So, he put the law and legal norms is to distinguish between.Method a complete law and incomplete law division.The complete law refers to the elements of legal norms, the assumption and the legal effects are unified in a law case in. In the criminal law, the law mainly refers to the criminal law provisions, it constitutes the crime of setting conditions on. It is the law of the judiciary of the conviction and sentencing provides legal according to clear, so the law is a reflection of the legislative intent in language, through the law we can understand the legislative intent. 　
　　

   From the legislative level, the legislative intent is always reflected in language, and finally in the implementation of the provisions of the law. Therefore, there is a word and the meaning of the relationship, the legislative intent is a meaning, and the law is a kind of language. Intention through verbal or written language to express, because it is an abstract, subjective thoughts, except in the case of Li Shangyin poem "heart to heart", is also appreciate sb.'s thought situation. In most cases, people have expressed an intention, often can only be expressed by means of language. Especially in the legislation, the legislation should be known to the public, the legislative intent of it can only be expressed by means of language. In the intent to use language to express, it may occur with some well, some expressed a bad situation. In the expression of good case, lawmakers can put a legislative intent by express language complete, correct, the public could accurately grasp the legislative intent, such legislation should be said to be very successful. But in another case, people use language to express their intentions, may also be changed things, his intention is not well expressed through the language, so that the public can not through the appropriate language to understand its intent. This will be misunderstood, as if you were going to criticize someone, the critics think you are in recognition of his; and you would want to praise someone, but praised listened thought you criticize him, leading to run counter to one's desire effect. Such things often appear in legislation. Therefore, in the use of the law to express the legislation purpose, may sometimes express well, sometimes expressed so bad. This allows us to be the judge of a legal provision, need to have two levels of evaluation. First is the legislative intention judgment, namely the legislative intent is good or bad. If the legislative intent is not good, even if you use the language to bad legislation intention to express very accurately, we can also criticized the legislative intent, that such legislation intention why is not good. The second is the legislative intent itself is good but the expression is not appropriate. In this case, we can criticize the legislation technology, because the law provides that no express legislative good intentions. Therefore, the evaluation of the law is twofold. 　
　　

   We are through a law to understand the intention of the legislation of the specific time, could also be another situation, this is caused by the characteristics of language itself. We use the language has its own characteristics, it is not artificially produced, not like the set in mathematics, physics, chemistry that a set of artificial symbol. The latter is artificial, completely accords with the logical, as long as expressed in the prescribed manner, it is not easy to be misunderstood. On the contrary, language is a naturally formed in the long history of social life in the symbol. Of course, the language of the law may be the most standard, the most serious in all languages. But even so, most of the language used in the legislation or the use of the language of daily life, and only a small part of the language is artificial, the so-called "legal language, such as" in the criminal law, commutation, parole recidivism, probation terms, this is the characteristic of legal language. But the legislation in other languages or the ordinary life language. When life language was adopted as the laws of language, in understanding may have produced some problems. In the legislation is to use some legal language, or use some daily language, it is one of the two difficult choice. If the language of the law is too specialized, legislation is not for ordinary people to understand, is not easy to understand. But if some professional terms, more the language of daily life, people accept it might be easier. There is always a matter of degree, and I think the key is how to grasp the degree. In the legislation if you can use the daily language to express the legislative intent, but not to cause the big misunderstanding, or should as far as possible the use of everyday language. Only in the legislative intent is difficult to express without the use of professional terminology, or in the legislative process has the history of the formation of this legal language, that should be devoted to the use of the term. Because the current law large using the language of daily life, is through the daily language to express its legislative intention, therefore, we may need to understand the legislative intent from the integrity of the internal system of the whole law, but not the concept itself literal meaning to understand. In this case, you may need to have certain professional knowledge, only in this way can we understand very well the law. In the understanding of a law, there is also a hermeneutic issues, namely the understanding and the legislation gap between how to eliminate, how to understand the law problem. On the issue of objectivism and subjectivism, there are two different points of view. Objectivism argues that, in the understanding of the law should be based on changes in social life, according to the comprehension of the social condition of life, to the understanding of the law, and not be confined to legislator subjective intention in legislation, only in this way can make the legal interpretation of the law to adapt to the development of social life. According to the subjectivist view, in the interpretation of a law, must explore the legislative intent. The legislative intent is that legislators think when they. Subjectivists believe, the legislative intent is a completely subjective existence. It is not difficult to find, subjectivism for understanding of legislative intent, is entirely confined to the legislative the circumstances, but actually to get legal content solidified, which can only be based on the legislation was what want to understand the law. These two points may each have advantages and disadvantages. Objective to understand the legislative intent, its biggest advantage is able to adapt to the development of social life, in the law to add some understanding of the content, so as to overcome the limitations of the law. But the biggest problem with this approach is the existence of a big power to explain. If the interpretation of the law to make the wrong interpretation, will make the application of the law defined completely from lawmakers direction, will lead to the destruction of the rule of law. And understand according to subjective position, its biggest advantage is required to explain who follow the legislator's intention to do, make the legal interpretation power limitation. This will give full play to the legislation to restrict the justice, can prevent the judge will interpret the law, so as to enhance the stability of law, the law can play the function of protection of human rights. In reality, interpretation theory may be more realistic, subjective theory of legal interpretation too idealistic. Because the law with respect to the development of social life has always lagged behind, to make legal provisions lag can adapt to the development of social life, they must go through the interpretation of law by judge, judicial creativity to make up the defects. Many famous law can apply for one hundred or two hundred years, it is due to this interpretation standpoint. For example, the penal code of France since 1810, was modified until 1994 (of course, have enacted during the many special legislation and subordinate legislation). As the criminal code of Japan, has also been implemented for nearly one hundred years, until now still in use. The penal code of law are not changed, the targeted nor the situation one hundred or two hundred years ago. It should be said, when legislators in the legislation of social status and now has changed a lot compared, but why are they still available? This is because the law itself although does not have what change, but people to its understanding has changed, and this change may still considerable. Because of the new concept in general to the law to explain, so one hundred or two hundred years ago to now also applicable law. This must be attributed to the legal interpretation. If no such explanation, but still the legislative intent as one hundred or two hundred years ago created the original intention of the legislation law, because they have been difficult to regulate the current social life, which is bound to make the law change quite frequent. 　
　　

   In our understanding of the law, on the one hand should be fully aware of the importance of the law, especially in the countries of continental law system. In general, the statute law is the main content of a country's legal provisions, in criminal law, it is mainly based on the conviction and sentencing. But on the other hand, the law is always limited, so the law is not completely according to the conviction and sentencing. There is a legal problem. I called the legal means of science, jurisprudence and philosophy are different. Theory and method together, is hidden in the back of the philosophy of law. Legal for law, has dual nature. On the one hand, law is dependent on the law, law cannot be completely separated from the law exists, completely out of the law and the existence of truth is not legal but philosophy; on the other hand, with respect to the law and jurisprudence is relatively independent, which is not completely determined by law. Strictly speaking, not the law determines the legal, but legal decision method. Because the law is a law, in a sense, a kind of expression it is legal. In the evaluation of the law, HERSHEY'S, we use the standard is the jurisprudence, jurisprudence is hidden behind the provisions of law plays a dominant role. So, I think in a certain sense, law is higher than that of the law. If the law to the law, the legal equivalent of natural law, legal value judgment function of the law. In other words, the law is good or bad, the judgment standard lies in jurisprudence. Therefore, the legal independent law personality, we must pay attention to the legal. Study the law one from the law to legal process, we first contact is the amount of the law, but the law is a phenomenon. We need to act behind to master its legal principle, legal principle with respect to the law is the dominant. If there is no good grasp of legal theory, so our understanding of the law can hardly be accurate. I recently wrote a book called "the ontology of science of criminal law", someone asked me this "ontology" is what meaning, I said that the body is a philosophical concept, from Kant began to have a dichotomy of things, namely the phenomena and noumena. The thing itself is ontology, ontology concept in ancient Greece had. This ontology and phenomenon of two split view from ancient Greece has been passed down to the present. Until after the phenomenology, philosophical ontology and phenomenon was broken two yuan in discrete status. But it is generally believed that, there are two forms in the world, is behind the phenomena and so on ontology, philosophy is the ontology theory, ontology is to explore the reasons behind the ultimate things. In the law, we can take the law as the phenomenon, the study of legal norms of knowledge called notes law or legal norm. I called the ontology refers to legal hidden in the regulations, the ontology of science of criminal law is also called the theory of criminal law. 　
　　

   Legal research can also provide two kinds, one is the standard research, another is the study of ultra specification. The law is the law, as the standard, the main research method, content, to reveal the law through the law content. Note law, also is the normative study of criminal law in our country has been bad reputation. But in fact, the annotation jurisprudence in a law to be dominant, especially as an applied discipline of criminal law in Germany, Japan, comments are quite developed. Because the interpretation of criminal law, the judges, prosecutors and lawyers to the correct application of criminal law, it is an important purpose of criminal law. I think, we need to annotate legal name now. The note law is worth fully advocate. Study to do the annotation of law, it is not easy. We study the law, first of all have a good grasp of law knowledge annotation, otherwise it is difficult to in-depth study of the law, after all, study of law cannot do without the law itself. Of course, I think, is only confined to the legal provisions of the annotation is not enough, but also the study of specification. Study on the so-called super specification is doing research in the philosophy of criminal law, it is the study of a metaphysical, the mission is not stipulated in the criminal law interpretation, but stood in the criminal law, the criminal law itself of value judgement. Professor Chu Huaizhi said the study of criminal law, the criminal law to study in criminal law, but also in the criminal law of criminal law, the criminal law from the criminal law study. The study of criminal law in criminal law, is the main research notes of criminal law. From the criminal law of criminal law is the philosophy of criminal law research, which stands in the criminal law on super normative study on criminal law. The study of criminal law in the criminal law, also is the study of a super standard, but this is mainly from sociology, ethics perspective to the study of criminal law. We should not only study on the criminal from criminal law, but also from the foreign criminal law, criminal law study on the criminal law, in order to stand a certain height overlooking the criminal law, judgment of value in criminal law, the criminal law legislative foundation for behind. 　
　　

   I think, on the philosophy of criminal law is very important, it can represent a country's level of criminal law thinking. Here involves the evaluation of super standard research of standard research and. Normative research is practical, will help us to correctly understand the law, provides the theory basis for the law applicable to judicial organs. But the research also has many limitations, which is restricted by the law. In the standard research object of the law, not ridicule, but the object of worship. In this study, we must assume that the law is always right, even if the law is not logical, only through the interpretation of the law is to. This makes the research on the lack of critical and reflective, you can not arbitrarily to criticize the law, because the law is actually a judicial criminal law. We were in the normative research, is to put yourself in the position of the judge. Just as professor Zhang Mingkai said, the judge can not in the case as a legal provisions not good will not be executed, which is not allowed. In the study of the law, not allowed to criticize the law, also do not allow judges beyond legislation. People have to interpret the law, namely the problem that people faced is how the provisions of the law is not well explained well. For example, Professor Zhang Mingkai think, in the bribery provisions concerning the interests of this element for others is not good, but you can't because you think this provision is not good, that it could not, or simple advice in the future amendment removed it, this is of no significance; we can only be interpreted through the this element is not all the same and. Professor Zhang Mingkai pointed out, through this interpretation, we can make the law is well applicable. This view is open to question, but the legal interpretation is in fact between the legislative and judicial built a bridge. Functions like mother interpretation of feeding the baby, mother only rice from, the baby to eat, so is the applicable law. Therefore, study on the law of approach and the unique context of their own. Instead, the super standard is not subject to legal norms of restraint, distinguish it and the theoretical level of. My "criminal law" is the main body of the legal method, which is independent of the law, I basically is to write according to the general provisions of criminal law system. But I'm in writing, without reference to any provisions of criminal law, such as the theory of accomplice, the crime number theory, and they are self-sufficient, does not need to rely on the law. I think of this I did in "criminal law" in the body of super standard, belong to the legal study of the relatively low level of. Higher level is the study of the philosophy of criminal law, it is not the legal regulation as the research object. I used to write "criminal law", "criminal law of human based value construction", did not involve any specific criminal law, but the criminal law as a whole, the criminal law on the entire social environment to consider its value basis. Here, the criminal law has become a symbol, and the specific provisions of the criminal law relationship is not much. Study on super standard is important, but it in quantity can not play a dominant position, but can only play the role of touch. More importantly, it is established on the basis of normative research. I said these theories distinguish the theoretical level, does not mean that this distinction is good or bad, is not the superior and inferior, not divided into senior and junior actually between them. Conversely, I think it has a benign interaction between the two, two can not be mutual estrangement. On the one hand only normative research more developed, it may be up to criminal law research and philosophical research. On the other hand, the criminal law study of super standard to a certain extent, in turn, will promote the normative research. 　
　　

   Of course, although the two are closely related to the basic position, but they are not the same, must be distinguished. Normative research is a kind of Judicial Studies, research and the standard is a legislative science. These two kinds of research mission is not the same, normative research is mainly for the judicial service through the annotation of legal provisions, the super standard by explains to the right legislation to provide theoretical basis. I think a mature science of criminal law, to distinguish these two positions, namely in the basic theory research, we must make clear oneself is engaged in what to study, not will stand and context confused, caused chaos theory, research in the past in criminal law, we can often see the context of chaos. The professional some criminal law to prove their point of view is correct, it will refer to a legal provision, why my view is correct? Because the legal provisions of this. Then, in the same article, he went to the criticism of a law, that the law is wrong. Because it is not in conformity with the theory of my views, this makes the relationship between law and article viewpoint has great randomness. If you stand on the super standard position, how can you use the law to prove that you are right? If the station in the standard position, how can you freely to criticize the law with your point of view? In my opinion, this article does not have what meaning, it is lack of normative, legal provisions is correct or not often with personal views and transfer. 　
　　

   As a scholar, I think it is important to study legal norms. I once wrote an article called "jurists mission", I may not consciously to study the law of a belittling attitude. I think, in the standard research, a priori assumed the law correctly, subject to the existing law, the subjective initiative of scholars don't seem very good reflected, but subject to legislative and judicial interpretation, there is dancing with shackles feeling. This makes the scholars always to be kept constantly on the run in the legislative, judicial behind, once the legislative and judicial change, theory can only be changed. New trend so people always went to inquire about the legislative, judicial. Scholars seem grovels before the legislature and the judiciary, this is a very sad image. Naturally, this is just my personal opinion. In my opinion, in the standard research, scholars scarcely his position. Because our legal provisions or certainly not as good as the understanding of judicial interpretation of legislation or judicial, so we have to ask what they think, in accordance with this idea to prove his theory. Scholars to self-reliance, only to devote themselves to the study of super standard. Because of super standard is not restricted by law, it is self-contained and self-sufficient, it does not rely on the legislative and judicial proof. The so-called autonomy is the research results not measure to adopt legislation or judicial, and to provide the law norms of reflection and value evaluation standard. In the past, people tend to a certain point of view by legislation or judicial authorities adopted and indulge in elaborating on, even as the symbol of their study successfully. In this standard, this research would not have sufficient. The study on autonomy allows us to obtain independent position method and jurisdiction of detachment, not the theoretical research with the legislative and judicial ran, but theoretical research to guide and guide the legislation and judicial practice. I think, this research reflects the intellectual scholar's standpoint. In the past we often jurists as a conservative, even the official designated to go, rather than into the intellectuals. There is the mission of a jurist how to act as the intellectuals, this mission requires us to research on super standard, only in the study of super standard, jurists become the real intellectuals. Of course, in terms of personal interests, different people may be biased, but the emphasis is not neglected. A person's energy, time course Co., may focus on one aspect, but that doesn't mean to ignore or even neglect some on the one hand, this is a very important point. A good lawyer should make greater contribution to the normative study, also can make great achievements in the study of ultra specification. The current research situation of our country, I think the two aspects of research are not enough. In the past, we think too much and too little of normative research, and in the past ten years, we put a lot of effort on the study of ultra specification. In the now, for the study of law is still not enough. Therefore, strengthen the research on the law is absolutely necessary. 　
　　

   The relationship between law and jurisprudence is very close, we should correctly handle the relationship between law and jurisprudence, the criminal law is very important for us to learn. 　
　                　

Two, the relationship between general and specific provisions
　　

   The relationship between general and specific provisions in fact that is general and special relationship. Criminal law in thousands of before, but the criminal legislation has experienced a long process from individual to general. The level of understanding of evolution and the legislation has improved relations. Legislation generalizations about objective things, such as the accusation in criminal law provisions, one from the individual to the general development process. Charges in the ancient criminal law is very small, very specific, very different, steal a pig is a crime, stealing five sheep is a crime, and even pick a few leaves is another. This and people's understanding ability are related, the abstract generalization ability is very low. Later, with the enhancement of people's cognitive ability, there have been some abstract charges, such as Chinese in Tang, there the concept, "the non physical called the pirates, pirates" can be divided into theft and robber, and as the six stolen goods crime provisions and so on. Has the very big relations level understanding abstract crime and improvement of people's. British jurist Maine found the ancient law, criminal law and civil law is more, only to the further development of the society after. In this regard, he gives the reason is more social violence at the time, so the criminal norms are more, I think this reason is not established, the criminal law is and when people's cognitive ability is low, so its generalization ability is low in relation to. Now a theft, in ancient times may need thousands of, hundreds of charges, charges and cumbersome. So the charges in ancient criminal law does not necessarily reflect the more crime, but can only reflect the legislators abstract generalization ability is relatively low. Just as people's cognitive ability and logical ability to continuously improve, legislation was gradually developed. Compared with the west, the legislative level we will be far behind. It should be said, has the very big relations legislation level and a nation's philosophical thinking. China philosophy thinking and ancient Greece, ancient Rome's philosophical thinking a lot of difference. That imagination summary of objective things in the Rome law, we can't imagine. Professor He Weifang said, see the civil law terms in Rome law, we can not but marvel at their rich imagination and abstract generalization. Logic and law are closely related, so China ancient forms of learning, the punishment is the criminal law, is the logic. Hu Shi wrote a book "history of pre Qin name", one day is about logic. The rule of law has many logic inside the problem, development level in a country of the rule of law developed and logic and philosophy, often has the very big relations. Chinese legislation to the Tang Dynasty have been developed, the main is a criminal law, the first part is a case law, after the eleven series is the provisions of the crime. The general provisions of criminal law in the law have a case, there are some similarities and general principles of criminal law now, but has not reached the requirements of the modern criminal law. In fact, the general provisions and the specific provisions of discrete system is started from 1810 "French penal code", it provides foundation for the development of theory of criminal law. The general theory to guide the role of sub, no general provisions, it is difficult to form the basic principles of criminal law. For example, the provisions on joint crime is appearing and the common crime phenomenon, the provisions on joint crimes have already had, but the common crime provisions only individual rules, scattered in different charges. Even to the Tang Dynasty, the Tang Dynasty is the first from the provisions of accomplice in patients in the law, but under the modern criminal law and the general accomplice in theory there is a big difference. The common crime alleged accomplice and we said Tang is different. The solution is to implement a common crime sentencing crime, the accomplice provisions will still dispersed in a specific crime, abettor and also provides independent charge. The level of legislation that although than previously has increased, but the increase is limited, it is mainly reflected in the sentencing, and the provisions about crime or dispersion. 1810 "French penal code" in the general provisions on the provisions of the joint crime, provided the principal and the accomplice, accomplice is the perpetrator, abettor has provisions in the specific provisions of criminal, convicted and punished according to provisions directly, accomplice and divided into instigating accomplice accomplice and help. In 1871 the German penal code "" began with three points, will be divided into common perpetrator, accomplice abettors and accessory, the general provisions of accomplice is applicable to all of the provisions, which makes the criminal law norms become quite, quite saving economy. Provisions of general accomplice become an expansion causes. From the point of view, regulations on accomplice complicity in the code provisions and modern criminal law, its function is not the same, the level of abstraction of the former relative to the latter is much lower. 　
　　

   It should be said, separation of general and specific provisions in the specific crime, from the abstract general provisions, is a great progress in the history of criminal law. To the general rules guiding role for criminal law's provisions for specific provisions, the understanding of the specification cannot do without systematic. For example, there are provisions intentionally stipulation, murder, but not the main provisions in the specific provisions of the provisions of intentional homicide, the main provisions can only refer to the provisions concerning the age of criminal responsibility in general provisions of criminal law. Thus only the provisions stipulated in the general provisions and the specific combination of elements, in order to build a specific crime. That is to say, for that specific crime, not separately according to specific rules to determine the constitutive elements of the crime, but to combine and general provisions. 　
　　

   Without expressly for the law shall not for the understanding of the crime, should be limited to specific provisions, but does not include general principles. Because of the general theory is stronger, in many cases can only rely on theory to solve. If this point is not clear, may explain the error occurred. As the current criminal law has stipulations about the 382nd of the third paragraph of the accomplice of the crime of embezzlement, the paragraph with national staff of corruption to corruption, the accomplice; and article 385th of the criminal law has no provision on bribery accomplice. It was on that, according to the principle of legality, the joint crime of bribery cannot be convicted, because the law does not expressly. It was on that, according to the principle of legality, the joint crime of bribery is not convicted, because the law does not expressly. This is totally wrong. I think, in the third paragraph 382nd the provisions of criminal law about the accomplice of the crime of embezzlement is a suggestive provisions, only to prompt. In the absence of other crime this prompt, no such provisions only that legislators are not particularly prompt, but does not mean that lawmakers believe such behavior does not constitute a crime, shall be investigated for criminal responsibility still should according to the general provisions of accomplice. If the crime of misappropriation of public funds, in 1998 the Supreme Court prescribed in the judicial interpretation: the use of human and state personnel jointly planned, instigate or assist the embezzlement of public funds, should be punished as an accomplice. But the judicial interpretation made no mention of non use people can follow the accomplice to deal with the problem, but in practice it has non use of abetting, helping the embezzlement of public funds, so, this situation can be convicted? There is such a case in the judicial practice: a court executive judge court, execute a 300000 property zoned to the court account. A private enterprise owners knew the situation to find a lawyer, the lawyer to discuss and judge, the plan after the money given to the use of private enterprises. To the time of the crime, the money is not returned. The court of first instance for lawyers and judges to embezzlement crime. On appeal, the lawyer for the defense, the judicial interpretation in 1998 only stipulates the use and state personnel jointly planned, abetting the crime of misappropriating public funds, can constitute accomplice, and does not provide non use and national staff common planning, solicitation or help the embezzlement of public funds, according to the principle of legality this is, without a law case, should not be treated as a criminal. The second instance court adopted the views of counsel, make verdicts on the lawyer. I think it is wrong to this understanding, as stipulated in general provisions of criminal law, in accordance with the general principles of criminal law in general, this situation can still be convicted, we want to avoid legal dogmatism. Because the law is always limited, in the conviction could not rely solely on the legal provisions, which must exist the judge interpretation and theoretical problems, applicable to any case law contains logical derivation in theory, if only according to the law to handle the case, people will not be the correct application of the law. Last year was a lawyer to consult with the unit bribery case. The unit is an agricultural bank, it gives a company issued about 90000000 yuan of loans, and loans in process to the companies claim to 14 sets of housing, then housing transfer to the office of three -- a Property Management Company. These housing finally to the living of workers, workers have been in accordance with the housing reform price down. After the incident, the procuratorial organs that banks constitute the unit bribery crime. The lawyer for the defense of the banks is, he made in the industrial and commercial registration on banks and Property Management Company are two independent legal person, now the house is transfer in the Property Management Company name, how can you say that the bank bribery? Therefore, he put forward the views of innocence. Professor Zhou Zhenxiang participated in the consultation on that, not because the banks in the industrial and commercial registration and Property Management Company are two independent legal person, that it doesn't matter banks and property companies, the Property Management Company is the bank run by three. This is just like a national staff bribery of the property in the name of the son in the bank, you can not say that this money is not for me but for my son, so instead of taking bribes. Here, the Property Management Company's position is equivalent to the bank "the son". Besides, the Property Management Company and the companies without any business, people with what to property companies, 14 sets of housing, which is obviously bribery. The lawyer may because the criminal cases to do less, think Zhou Zhen wants to teach this answer did not remove his doubt, so the old to find the corresponding legal basis. I said to him, you have to in accordance with the law did not, the law also may not have such a provision. For example I would Zhou Zhen want to kill, I can also say that there is no legal basis for this, because the law is not possible to specify kill Zhou Zhen want to murder. Then, the act of killing what constitutes murder, because Zhou Zhen wanted to kill Zhou Zhen is, so to act constitutes a crime. The law is abstract, general, and the case is specific, individual, the general norms applicable to process a logical reasoning in specific cases. Therefore, you may not find a specific legal basis. This only to thousands of years before looking for thousands of years ago, the law is specific, and the law of modern always abstract. Even if the legal process like killing this simple case, there is a logic deduction, not suitable for a complicated case law, it needs a lot of demonstration of the link, to take a lot of bridge. In a word, it is a complex theoretical derivation. Among them, the theory of criminal law plays a large role. Legal basis is very limited, in accordance with the law can not solve all the problems in the judicial practice of conviction and sentencing, but need to rely on theory to fill. The principle of legality is the means which behavior is crime shall, according to law, and not all reason to handle a case must have legal basis. 　
　　

   Therefore, we should correctly handle the relationship between the general provisions and the specific provisions of criminal law, only in this way can we correctly understand the law and apply the law, not the general provisions and specific provisions apart. In fact, they are a whole. Is the relationship between general and individual. 　
　　

Three, the relationship between the theory and the case
　　

   Case refers to the processing of the specific object in the judicial practice, theoretical research Chinese habit called case. The case and the case is not the same. There are plenty of precedents in common law countries, so need to research on the case. The rule of law case law countries are derived from the case, because the case is made by judges, thus forming the judge made law and civil law, this is not the same as. Now, in the field of criminal law in common law countries, the legal principle of crime and punishment, there are a lot of law. Can say, the field of criminal law is the law of the most developed areas. Nevertheless, the conviction and sentencing in the civil law system countries written law and the role of law in the Anglo American countries in the role is not the same. In the Anglo American countries, laws are not cannot do without precedent, only through a case, in order to make the law into the basis for conviction and sentencing, so the case play a role in the great. In short, the judge did not sentence the case before is the case, the judge sentenced later called case. Study on case law in western countries is mainly to study how the judge sentenced, raises some rules and theories from the judgment reason judges, as the basis of law. Our case is the judge, in the case study, we each have their own ideas into the judge. This so-called case and the doctor called the case is similar. Research focus research and case case is completely different, the case study focuses on how the case; in the case of study, not the case study how sentences but the judge what make his decision, as well as the research of his opinion. In the current jurisprudence study, we only case studies, but less research on precedent. This is mainly because the judge our judicial practice in the case is still not standardized, our judgment is not reasonable, therefore, the case study also lack the basic conditions. But we have a number of case studies, the research on criminal law is very important, because the theory is abstract. Civil law countries used to systematically expounded the theory, and the theory is developed. But because the theory must be applied to specific practice, while the case is differ in thousands of ways, so the theory of the master, does not mean that the theory better applied to specific cases, this requires us to study the case, the theory can play a complementary role. The theory itself has its limitations, it is generally not possible, all end in reality, some cases can provide some ideas, to enrich our theory of criminal law. 　
The case is generally divided into two categories, one category isThe average case, they belong to the typical case. Compared with the general and legal provisions. These common case processing is relatively simple, as in a cold, have a fever clinic common disease. A large number of cases in the judicial practice all belong to this category. Another case isDifficult casesThese difficult cases, incurable diseases and the doctor meet some conditions, even in the medical books never appear.Difficult cases can be divided into two categories: one category is the difficult case evidence, the evidence collection difficult or the evidence is not up to do the full extent of the case; another is a difficult case of application of law, in such cases, the provisions of the act and laws do not fully comply with, what is this crime or other crime, is guilty or not is consider.The law is based on the general features a number of past treatment crime summed up, it is always limited, abstract, abstract the law itself means lots of individual to abandon. The criminals to commit a crime, the total can not according to the law to the crime, and the crime is developing, could break through the existing legal provisions, which will lead the difficult case. Treatment of difficult cases require a high level of the theory of criminal law. The law applicable to the specific cases, of course, need to understand the law, but also need a lot of other knowledge, and even social life experience and common sense of life. In some cases, the acts of the defendant is guilty or not, may be completely depends on the judge of a thing, and this kind of judgment is often and legal issue. Some time ago, we discussed a contract fraud cases, the case finally relates to how to understand the fourth "the criminal law 224th from the opposite party goods, payment, advance payment guarantee property or go into hiding after" problem, that is to say the defendant guilty of no crime actually depends on whether the escaping judge. The defendant is a native of Hongkong, he spend a few yuan one company registered in Hongkong, is for people to open the letter of credit. He opened an office in the city, the office of the actual in his home, for no pay, cancelled by two years ago. The defendants and others signed a contract, accepting other people about 1000000 yuan of deposit. Took the money, he will be home telephone and fax to the people, go to the police, after a period of detention, the city's Procuratorate decide not to initiate a prosecution for their. So, the defendant has presented to the district attorney and the city's claim for compensation, but the two level procuratorates are to maintain the original decision, don't think it is necessary to compensate the defendant. Not at this time because the District Public Security Bureau's decision not to initiate a prosecution, asked the reconsideration to the people's procuratorate. City procuratorate review, that the defendant's conduct has constituted a crime, therefore revoked the decision not to initiate a prosecution, asked the district procuratorate prosecution. District procuratorate so appealing to the district court, but the court of second instance to unclear facts on remand. The district court for the second trial, that the accused has constituted a crime, the judge sentenced him to 12 years. The defendant is said to a trial against, and filed an appeal. Now the second instance of this case results also did not come out, but the estimated city intermediate court will be upheld, because according to its internal documents, this behavior is considered to constitute a crime. In this case, the defendant without request state compensation, obviously can not be guilty verdict at this point, we are not to say it. Specific issues on the case, the problem is in fact the defendant to change the phone and fax behavior whether to belong to escape problems. The district court for the first time in a verdict of not guilty, think this type of behavior of the defendant does not belong to escape, because the defendant company in Hongkong and the mobile phone numbers are not changed. The court verdict of guilty in second, but the change home telephone and fax number of the act of escaping behavior. It relates to the problem. In fact is to escape behavior judgment, this basically is not a legal problem. Because of the UN standard, law and no provisions, we can only make a factual judgment according to the common sense of life. 　
　　

   So, I think a theory, a legal requirements applicable to the specific cases, involving general and individual running between the problem, how to put the individual information included in the general provisions, judicial personnel according to the specific situation to carry on the concrete judgment. It requires not only legal knowledge, is the need for more common sense.