The rules of interpretation of criminal law

Abstract: in order to ensure the application interpretation of criminal law, the legislation with legislation purpose, criminal law similar to the case for similar treatment target, the interpretation of criminal law should special criminal law according to the principle of legality requirements and constraints of the text, the criminal law applicable rules of interpretation, interpretation of criminal law should follow the law of identity, rows of heteronomy, containing only the same, strict interpretation, correct interpretation and the logic of life.

The interpretation of abstract thinking is a kind of metaphysical way of thinking, which includes formal logic and dialectical logic. The unified form of logical thinking and dialectical logical thinking based on the binding properties and its interpretation, target, modern criminal law principle of legality under the control of the author advocates, interpretation of criminal law should follow the rules of formal logic and dialectical logic. (Note: the formal logic and dialectical logic of the interpretation of criminal law application rules in fact is not limited to the following rules, I expound and prove these rules is the most basic rule of interpretation of criminal law must comply with the. )

A rule, law of identity

In formal logic of identity means that must maintain the same concept and proposition on the same thinking process, to avoid the "confusion", "concept" or "top", "one subject" error. Applied to the interpretation of this thought process, the law of identity requirement for the same criminal words in different occasions the same explanation. According to the rules of interpretation of law, China's current criminal law article sixty-seventh paragraph second of the criminals "in particular the provisions of surrender in the confession of the judicial organ has not grasped myself other crimes," shall mean all the other crimes have been outside the judicial organ grasp the crime, including both and judicial organs have I committed other crimes belong to the same charges, including and judicial organs have I committed other crimes belong to different kinds of charges. The Supreme People's Court issued the "on the treatment of voluntary surrender and meritorious service for the specific application of the law interpretation of several issues", other crimes will be truthful and judicial organs have I crime belongs to the same charge out of the voluntary surrender of scope, in clear violation of the rules of law, does not conform to the original intention of the legislation of special voluntary surrender system.

Of course, the law of identity in the interpretation of criminal law is not without exception rules. If the legislation also stipulates its different meaning, the same concept can be interpreted differently. This exception is not only to define the different legal meanings of the same concept of the different, may also be within the same legal text on the same concept of the different definition. The former can be bigamy crime interpretation as an example. According to China's current criminal law 258th stipulation, "spouses and bigamy, or knowingly marries a person who has a spouse", is the crime of bigamy. 1994, approved by the State Council, the Ministry of Civil Affairs issued the "marriage registration regulations" twenty-fourth article: "in line with the conditions of marriage litigant without marriage registration in the name of husband and wife live together, their marriage is invalid, not protected by law." Since the legal effect marriage law no longer recognize the fact marriage, if there is a partner and with others in the name of husband and wife living openly, or knowingly spouse and to name cohabiting couples, whether as "a spouse bigamy knowingly or a spouse and get married" according to the general rules of this? Form identity logic seems to be a definite conclusion. However, "marriage registration regulations" will be without a marriage registration is open cohabitation in the name of husband and wife act declared invalid marriage, purpose is to no longer protect the invalid marriage and the resulting property and personal relations. If the criminal law not to bigamy crime, is in violation of the "Regulations" marriage registration management intention, is tantamount to encouraging the bigamy. Therefore, the Supreme People's Court issued in December 14, 1994 "about living together in the name of husband and wife illegal bigamy cases" Marriage Registration Regulations > after the implementation of whether to reply "bigamy crime punishment stipulates:" the new "marriage registration regulations" promulgated after, married people and others in the name of husband and wife living life knowing others, or have a spouse and the name of husband and wife living life, still should be the bigamy crime punishment." This is a typical example of criminal law and the marriage law explain the meaning of "marriage" of the legal concept of make different definition. The latter can present article 269th of the criminal law of the crime of transformed robbery "guilty of theft, fraud, snatch crime" interpretation as an example. According to the law of identity, here called "guilty of theft, fraud, snatch crime" should refer to the theft, fraud, plunder of public or private property is a larger amount of criminality. But because of our current criminal law 269th stipulation is transformed robbery crime, constitution and robbery is not particularly large amount must be looting of property, so as the crime of transformed robbery constitute the premise of "guilty of theft, fraud, snatch crime", the meaning of course, should not be limited to the scope of violations of property amount a theft, fraud, the larger the crime of seizing property violation, even the small amount, does not constitute a crime of theft, fraud, plunder, may also to robbery. Therefore, the "two high" released "about how to apply article 153rd of the criminal law (Criminal Law of 79) replied" stipulates: "the defendant commits the crime of theft, fraud, plunder, although did not reach 'larger', but for booty, resist arrest or destroy criminal evidence and uses violence on the spot or the threat of violence, plot serious", can be in accordance with the crime of robbery.

Two, row of heteronomy rules

Rows of heteronomy rules, also known as the exclusion rules express the rest, which lists the criminal law terminology and principles of several specified matters or exceptions, means that the exclusion of other matters or things that are not listed, unless otherwise expressly provided in criminal law of different.

Rows of heteronomy to explain the rules generally applicable to the "express criminal law text list" of legislative technique and the interpretation of the meaning of words. Legislators use "expressly enumerated legislative technology", often cited by individual way of descriptive, to the provisions of the elements. "The express list" of the constitutive elements of crime description can provide understanding of legislative purpose "substantial guidance image", range can be clear, direct, concrete, determine the definition of intervention by the criminal law, which do not belong to the "express matters enumerated list" constitutive elements of crime, in the appropriate interpretation according to "express its rejection the remaining" rules, of course is that excluded from the scope of application of criminal law. Rows of heteronomy is suitable for "explicit enumeration type" crime constitution interpretation is typical of the second paragraph of the current criminal law of our country seventeenth relative age of criminal responsibility of explanation. 8 kinds of crime which explicitly lists over 14 minors under 16 years of age of criminal responsibility, so as to eliminate the possibility of the full 14 minors under 16 years of age for criminal responsibility of crime in other application.

Rows of heteronomy rules require "express the rejection, but" the rest "express the rejection of the" should not be confused with "express exclusion of implied". The so-called "express exclusion of implied", refers to the text of the law expressly for some of the factors derived from other no explicit stipulations of law of the elements of the text does not contain this element. So far, "specific rules express exclusion of implied" as a systematic explanation was not accepted explanation of criminal law theory, we cannot excuse "express exclusion of implied", from the provisions of the criminal law on the crime of the elements of a specified, of course, to derive the other does not expressly provide the elements of crime exclude the elements. For example, we can't from our current criminal law 172nd illegal possession of counterfeit currency crimes stipulated "the premise that" elements of the so-called ", express exclusion rules of inference implied", the other has not stipulated the "possession crime is knowingly" elements do not need to prove that "knowingly". In the author's opinion, lawmakers are expressly only out of "knowing" and hold the coin to constitute the holding of counterfeit currency crimes, because as the crime of holding the object with "counterfeit" mix the spurious with the genuine, not easily identified characteristics, prone to not hold a counterfeit situation, so the need for legislation on the element of "knowledge" give special express. And the other holding type crime constitution is not particularly explicit element of "knowledge", because legislators according to experience and common sense, the crime of possession holdings itself is often the contraband, and easy to identify, because of negligence and accidentally held or in no loss of being stolen while holding load of course, does not have the punishment, to hold the specific items of crime must be intentional and "knowing", is a self-evident sense. We hold the crime in the application of interpretation, not rigidly adhere to the rules of logic of so-called "express exclusion of implied" form of abstract reasoning, can not rigidly adhere to the provisions of the criminal law stipulation "knowing" to judge whether the strict liability, but must use legal consciousness, life experience and discretion the specific crime criminal intent elements of thinking and judgment with the logic of life. If the so-called "express exclusion of implied" rule no consensus, there is no excuse for criminal law expressly provides that "knowingly" literal elements, asserted that the crime of possession is not needed for "knowingly" or do not need to prove that "knowingly" strict liability crimes, must contain huge risk to innocent, objective imputation.

　Three, with similar rules

Only with similar rules, namely when the criminal law word meaning is not clear, the attached to certain words in the lexical meaning, should be based on the deterministic words involved similar or the matters to be determined.

As a basic principle of system interpretation, with similar rules as "attached to the legislative method" analogy inference and. The so-called "analogy inference methods of legislation", refers to the technical criminal legislation "in crime in several key situation of the criminal law, the 'or', 'and the other' words will be related to the similar situation within the scope of the criminal law. The essence of this method is to avoid., to prevent lawless list is not all due to punish crime at." (Note: Zong Jianwen: "criminal law mechanism", Chinese Fangzheng press, 2000 edition, seventy-fourth ~ 75. But, in fact, even) is an attempt to combine punishment of all possible prerequisite itemize legal text, still may be incomplete, not fully comprehensive range type of behavior, norms and values and reflect the legislators to illegal behavior attribute judgment. Therefore, legislators will be in the "explicit enumeration type" description, with certain logical abstractness and normative evaluation of general concepts and terminologies, typical feature description should be subject to penalty punishment, resulting in a closed descriptive composition of crime, form a certain open descriptive. Essential elements and normative. (Note: Chen Xingliang: "the ontology of science of criminal law", commercial press in 2001, 224th ~ 225. Because of the complexity of crime), morphological diversity and rheology, legislators in fact may not use "expressly enumerated legislation method" to be precise, specific, Zhou Yan type rules, but must use analogy inference method, which explicitly enumerating elements in common, the typical practice, provide legal based on the definite for most cases of criminal law, and from the general provisions of other possible elements, the legislation is often expressed as the criminal law, often in the use of deterministic word specifically enumerated several situation or event, accompanying a such as "and the other", "or other" the conclusion of the word, to strict criminal law, strict criminal liability, protection of the interests of the law of Zhou Yan.

According to the same rules containing only, in judicial explanation of application of criminal law, should be through with the law specifically enumerated in the constitution of crime of analogical inference essential factors, clearly defining the connotation of the elements of the elements in criminal law, so as to meet the requirements of clarity and certainty. In order to avoid the explanation of arbitrariness, should according to the analogy of object and interpretation, namely "or other circumstances before" is a reference, rather than basic can be explained that the connotation of "other" this term. In accordance with the same rules containing only, the general meaning of the words only is not expressly listed properties, conditions and circumstances or events specifically cited similar or equal to other situations or events, not including other circumstances or events are not similar or not quite. (Note: Chu Huaizhi American: "criminal law", Peking University press, 1996 edition, forty-fifth ~ 46. )

Only with similar rules of general words and word class of deterministic isotropic, mainly refers to both in terms of events or conditions of the similar attributes. The explanation is one of the typical cases in our current criminal law 114th, article 115th stipulated in the "other dangerous means to endanger public security" explanation. According to the same rules containing only, here the so-called "other dangerous means," only refers to is not the current criminal law of our country 114th, 115th enumerates explicitly but is dangerous and dangerous way, flooding, fire explosion, put on the dangerous substances is almost all other methods, but does not include other possible danger and these dangerous method was not quite the same cause casualties or property is not a specific public-private loss behavior. (Note: in May 15, 2003 the "two high" released "for obstructing the prevention, control the epidemic situation of infectious diseases and other disasters of the criminal case concrete application law interpretation of several issues" the first stipulation: "the deliberate spread of infectious disease pathogens, harm the public safety, according to the criminal law 114th, 115 of the first paragraph, according to dangerous means to endanger public security crime." According to the judicial interpretation of logic and judgment makers, who "intentionally spread pathogen outbreaks of infectious disease of body" behavior, which has the fire, explosion, and solve water, placing dangerous substances in dangerous methods such as considerable danger. The "interpretation" evade application of article 330th of the criminal law crime of impairing infectious disease prevention, the interpretation of intentionally spreading pathogen outbreaks of infectious diseases for the crime of endangering public safety, violating the rules with similar risk of dangerous method rules, whether it is "to avoid light (SIN) weight (SIN)" the suspect, are worth discussing. )

Four, the strict interpretation of the rules

Criminal law interpretation must use strict interpretation of interpretation is the basic approach to meaning, should as far as possible, do not violate the social reason explanation according to the criminal law of word the literal meaning is usually, unless according to legislative intent to different interpretations.

The strict interpretation of the rules is of course requirements of the principle of legality. "The French penal code article 111-4" general principles of criminal law clearly stipulates: "should be strict interpretation." (Note: "the French penal code", translated by Luo Jiezhen, Chinese People's Public Security University press, 1995 edition, page second. According to the strict interpretation of the rules), "responsible for the criminal law the judge has no right to its expansion to the legislators did not specify the circumstances. Every law has not stipulated the behavior is not punished. Even if a similar behavior, the plot might even be lighter, but because of the provisions were punished, not the provisions of legal behavior is not punishment." (Note: [Law] Kaston Stefani: "the general provisions of criminal law essence", translated by Luo Jiezhen, China University of Political Science and Law press, 1998 edition, page 140th. ) even judge discretion and applicable interpretation of Anglo American law system also adhere to the "criminal law must be strictly interpreted, to the exclusion of criminal law applicable to the unjust". (Note: Chu Huaizhi American: "criminal law", Peking University press, 1996 edition, page forty-fifth. )

However, interpretation of criminal law is the strictly to what extent, but there is no fixed standard, and should be combined with the legal principle of crime and punishment and its value of development and advancing with the times to be determined. Popular in the form of the doctrine of a legally prescribed time, process safety, certainty and predictability and formal rationality has become the basic demand of the criminal law, interpretation of criminal law theory and take the absolute strict interpretation as the basic position of the subjective interpretation or explanation on the form, to strictly respect and loyalty to lawmakers to pass legislation. Criminal law text representation. At the beginning of twentieth Century substantial legality rising, the flexibility of law, dynamic and comprehensive and substantive rationality becomes the basic value of criminal law, interpretation of criminal law theory and adopt relatively free interpretation of the theory of objective interpretation or substantive theory, tries to explain the criminal law criminal law text is found now have objective meaning, so that the criminal law to keep pace with the times, along with the development of the times. Contemporary legal principle of crime and punishment is the formal rationality and the substantive rationality of the dual demands, the emphasis in ensuring a minimum of formal rationality and law, security and predictability of at the same time, through the proper interpretation of criminal law text, found now have objective meaning, to meet the needs of the substantive rationality and flexibility of law.

Explain the application of criminal law on strict interpretation of the rules in the field of vision, not impose strict interpretation of the word for word and sentence for sentence on the criminal law text, "the judge is always according to the lawmakers thought and intention, to revise a law in fact or statement error." (Note: [Law] Kaston Stefani: "the general provisions of criminal law essence", translated by Luo Jiezhen, China University of Political Science and Law press, 1998 edition, page 143rd. ) also does not exclude the application of literal interpretation method other than the logical interpretation methods are relatively free to explain, not even the absolute prohibition is not conducive to the interpretation of the expansion is necessary in accordance with the original intention of legislation, legislative purpose, because "the strict interpretation of the rules is not mandatory criminal judge only stipulated the various possibilities for the legislation of criminal law'. As long as what happened to fall within the statutory form, the judge may be legislators provisions expansion to the law does not provisions." (Note: [Law] Kaston Stefani: "the general provisions of criminal law essence", translated by Luo Jiezhen, China University of Political Science and Law press, 1998 edition, page 143rd. )

Adhere to a strict interpretation of the rules is the key to rationally define the interpretation and analogy to explain the expansion. As an upstream from the strict rules of interpretation beyond the relative freedom of interpretation of criminal law in a certain degree, expanding interpretation must be strictly restricted, criminal law text "possible meaning" should be interpreted the biggest boundaries, beyond the limits of analogy from the interpretation is to explain the principle of legality. However, due to the different legal background, the legal value changes, the same word of interpretation research is expanding interpretation or analogical interpretation, often cannot reach a consensus. When the German judges think power not 1870 "German penal code" refers to the property, if the theft of electricity can be interpreted as the crime of theft, is prohibited by the interpretation of the expansion of legality. While the French and Japanese court is that the power is a kind of intangible property, but like tangible property has value, can be occupied and used, and also the criminal law protection of property, the theft of electricity can be interpreted as prohibited by the criminal law of theft is still legally allowed to explain the expansion. (Note: [Law] Kaston Stefani: "the general provisions of criminal law essence", translated by Luo Jiezhen, China University of Political Science and Law press, 1998 edition, page 143rd. ) also has similar disputes in the criminal law of our country in the process of application. In recent years, some localities in China have occurred in some bar owners use bar tissue cover "handsome" and gay men are promiscuous activities of the cases, around the characterization of these cases, the judicial practice and criminal law theories have serious differences. A man of principle of legality of dogmatism and formalism based on the understanding of China's current criminal law, the provisions of article 358th of the crime of organizing prostitution is strictly interpreted as organization women to provide money or possessions of the exchange is the premise of the behavior of the service to the male, but not including male to female or between organizations to provide organizational gay money or property exchange is the premise of the service. Therefore, although the researchers acknowledge that organization "handsome" and male homosexuals were promiscuous behavior has seriously jeopardize social weathering, but according to the principle of legality "no crime without law" requirement, still will not be such behavior is interpreted as the organization prostitution crime, it is the analogy of crime in law prohibited explanation. (Note: investigating November 26, 1998 Chengdu Municipal Public Security Bureau "red bat tea house" the boss Huang suspected of organizing, reserved male same-sex sexual trading case, ultimately in the procuratorial organs expert advice was "unable to find suitable legal basis" and returned to the public security organs, the public security organs after the lifting of the criminal suspect Huang bail. See also: -- "the first homosexual trading case withdrawing", "Peking University Law weekly" in 1999 second volume third issue. )

In the author's opinion, word meaning prostitution is exchange is the premise of the promiscuous activities to money or property. Prostitution is usually refers to the female to male prostitution prostitution, but the meaning of words may be also is unusual but not completely rule out the male to female or gay prostitution. Will "provide paid services to the handsome" gay behavior explanation for prostitution prostitution, did not exceed the maximum word may have the meaning of the scope, not beyond the reach of national scope to predict the possibility that the organization prostitution crime crime constitution, but also in full compliance with the law and legislative purpose to punish the crime of organizing prostitution in order to protect the social morals and public order and good customs. The analogy interpretation is not prohibited by the principle of legality, such explanation, but legally permitted expansion explanation, although interpretation unfavorable to the defendant.

Requirements of the legal principle of crime and punishment of interpretation of criminal law application must be in the scope of criminal law text may be within the. However, it should be pointed out that "in criminal law, meaning that the boundaries between permissible interpretation and does not allow the analogy, this fact does not mean that the explanation, in any case can reach the widest point of word boundaries. The crime scope elements expressed more often than lawmakers are envisaged to be broad, in this case, the legal interpreter task is through the 'cut' teleological conforms with the limited objective explanation of some concepts, the law will be respected." (Note: [Germany] Hans Heinrich Yesek: "the German criminal law textbook", translated by Xu Jiusheng, China legal press 2001 edition, page 198th. ) i.e., interpretation of criminal law in the necessary expansion explain at the same time, also with the purpose of legislation necessary restrictive interpretation. With the expansion of the interpretation of the conclusions, restrictive interpretation conclusion can be in favor of the defendant, or may not benefit to the defendant. Typical judicial interpretation of the Supreme People's court "is about a number of issues of specific application of law in the trial of theft case explanation" article fourth of the "explain the repeated theft" and article eighth of the "theft of financial institutions", (Note: the "interpretation" fourth shall constitute the crime of theft criminals as a quantitative standard "repeated theft" limit interpreted as "1 years a burglary or in public places to pick 3 times", and the eighth will be as the theft of death penalty legal circumstances "theft of financial institutions, if the amount involved is especially huge" restrictive interpretation as "theft of financial institutions operating funds, securities and customer funds, such as depositors other funds, bonds, funds, stocks, corporate accounts, not including the theft of financial institutions, office supplies, transport and other property act." The latter is typical) the judicial interpretation of the Supreme People's court "several issues about the specific application of law in the trial of criminal cases of traffic accident explanation" article fifth and article sixth of the traffic accident "death caused by escape" explanation. (Note: the "interpretation" fifth "death caused by escape" interpreted as "behavior after the traffic accident escaping to avoid legal punishment, causing the victims died because they were unable to rescue the situation", sixth and "behavior after the traffic accident to escape the law to pursue, will the victim away from the scene of the accident after the hidden or abandoned, the victim can not be salvage death or severe disability, shall be respectively in accordance with the article 232nd of the criminal law, the provisions of the second paragraph of article 234Th, in order to murder or intentional injury crime." ) but, whether it is in favor of the defendant's restrictive interpretation, or the defendant is not conducive to the restrictive interpretation, the interpretation shall be the same as the expansion explanation, not escape is explained by the legal text and words may have the meaning of the scope, restrictive interpretation only within the text of the law and its word meaning conforms to the legislative purpose the reduction and limitation.

Five, the correct interpretation of the rules

In recent years, along with the process of rule of law in China continues to promote the establishment of special is the presumption of innocence and the principle of legality, has been China's traditional society ruled by man look up to as the standard of "Ning Wang is not vertical", "doubtful crime from", "doubtful crime from hanging" and even "suspected crime severely" guilty deduce concept, etc. practice being negative, popular discourse and emphasized in the criminal litigation proof process, if it finds that the facts of the case difficult to clarify questions or doubts, not to prove beyond reasonable doubt that the defendant is guilty of the degree, for the determination in favor of the defendant, to avoid the facts that may arise against the accused human error, which is the "suspected crime never", "a crime suspect" as the basic symbol of "impeach the defendant" principle. Because of the presumption of innocence and the principle of legality of misunderstanding, China's criminal law scholars have argued that the "application to explain doubt the defendant" principles applicable to criminal law text, emphasized in the criminal law the meaning of a text is in doubt or ambiguity according to "open the defendant" principle, to implement the "suspected crime," no "a crime suspect". (Note: for example, in the Liu Haiyang "bear injury" case how to apply to explore the process of application of criminal law, some people think, Liu Haiyang hurt black bear is a rare animal, zoo enclosures rather than survival of wild animal, so can't think is hurt endangered wild animal; black bears are the provisions of the criminal law of precious and endangered wild animal, rather than the general property, deliberately hurt the black bear, thus cannot take the deliberate destruction of property crime. Even though black bears can be interpreted as a special property, the black bear is "be above", can not determine the specific property value, and the provisions of the criminal law of the crime of intentional destruction of property has only a "large amount" and "huge amount" two kinds of situations, and therefore can not be corresponding applicable. The criminal law of Liu Haiyang bear injury behavior since no rules, according to the requirements of the principle of legality, so it should be guilty. -- see Zhang Mingkai: "" discourse analysis in theory of criminal law, Peking University Law School: "load series Peking University Law Forum" the first series of "orthodoxy" program, Law Press, 2003 edition, page 156th. At the same time, as the antagonistic) strong discourse on the "open the defendant", also have recognized scholars clearly proposed "open the defendant" applies only to the fact that the law applicable to doubt without doubt, absolute exclusion "of doubt in favor of the defendant" principles for the regulation of the criminal law interpretation. (Note: for example, Professor Zhang Mingkai think, object penal code is just words, rather than being laughed at and criticism. When the criminal law is in doubt or dispute, should be based on the general legal principles of interpretation, eliminate the doubt, but not entirely made in favor of the defendant's interpretation. Interpretation of criminal law's task is to try to good will toward the provision term to explain the direction close to the natural justice, by explaining what "provisions of the criminal law, so as to become law, the law of justice. -- see Zhang Mingkai: "the basic position of" criminal law, China legal Press 2002 edition, order second ~ 3 pages, fifty-first pages. )

The author thinks, interpretation of criminal law interpretation and reconstruction of criminal law text meaning, not only reflected in the provisions of the criminal law text unclear circumstances through appropriate interpretive activities make the text meaning clear and definite, and that the meaning of text is clear and uniform when the criminal law the meaning of a text is doubt or ambiguity through proper interpretation. Generally speaking, "in the legal case of doubt,...... The court did not result from application of the law, the court have no obligation to take 'restrictions to criminal interpretation'. As in the provisions of the law is not very clear circumstances, the judge should first use to explain the general method (preparatory work, traditional and rational material), find the real meaning of law from." (Note: [Law] Kaston Stefani: "the general provisions of criminal law essence", translated by Luo Jiezhen, China University of Political Science and Law press, 1998 edition, page 140th. ) "in the interpretation of laws, the court is not the choice of the most favorable interpretation, but choose the correct explanation." (Note: [Germany] Hans Heinrich Yesek: "the German criminal law textbook", translated by Xu Jiusheng, China legal press 2001 edition, page 196th. ") is important applicable law to identify the legal reason. Based on this point of view, there is no expansion of interpretation, and there is only accurate explanation." (Note: [Germany] Hans Heinrich Yesek: "the German criminal law textbook", translated by Xu Jiusheng, China legal press 2001 edition, page 196th. Visible), interpretation of criminal law principles cannot be applied to "open the defendant" principle ", which makes the judge has the obligation to explain the legal possibility from many select a possibility in favor of the defendant (i.e. in doubtful cases against the defendant favorable legal interpretation)." (Note: [Germany] Hans Heinrich Yesek: "the German criminal law textbook", translated by Xu Jiusheng, China legal press 2001 edition, page 190th. ) that is to say, there is doubt or ambiguity in the meaning of criminal law text, judge not according to "open the defendant" principles of interpretation favorable to the defendant, but the use of appropriate interpretation, the interpretation methods and rules, make rational, correct and accurate interpretation of criminal law text, the interpretation may be beneficial to the defendant people, may also be unfavorable to the defendant.

However, the author thinks, applicable interpretation of criminal law is not absolute exclusion "of doubt in favor of the defendant" principle. Criminal law text meaning of doubt or ambiguity is the source of criminal law loophole, this vulnerability can be divided into internal vulnerability and vulnerability. Law loopholes can be filled by judge, reconstruction of the appropriate interpretation but, legality is strictly prohibited to judge made law function, determines the method of vulnerability could not be filled through the interpretation and application of judges, and must start the procedure of legislation or at least the legislative explanation can be added. For example, China's current criminal law provisions of article 263rd of the 8 aggravating circumstances of crime of robbery, including "posing as police officers". In the interpretation of law, "posing as military police robbery", usually refers to does not have the police the identity of the personnel and the military and police personnel robbery, of course, can also expand the explanation for the military and police personnel with special police the identity of the military and police officers posing as other specific services, police, rank or level of flagrant robbery. However, if the military and police officers to use their real identity, police police privileges, conduct an evil activities openly robbery, is obviously beyond the "maximum range as a word meaning" might be, or even completely deviated from the "shall have the meaning as" a word, so cannot be interpreted as "posing as military police robbery", in the criminal law of China, article 263rd aggravating circumstances "explicit enumeration type" settings, objectively also ruled out for military and police personnel robbery to general heavier punishment theory logic. Therefore, although the degree of harm of military and police personnel robbery as "posing as military police robbery", but if the behavior does not meet the statutory 7 aggravating circumstances, still not applicable aggravate the legal punishment, but only applied the basic penalty of robbery crime, that is only for military and police personnel robbery made in favor of the defendant explanation. (Note: the police robbery can be interpreted as "posing as military police robbery", highlight the importance of criminal law. If legislators to carefully choose to use such as "expressly cited", "analogy inference", "the principle of instantiation" different legislative method, properly configured descriptive, normative, closed, open sex crimes, which can avoid many should not be legal loopholes. )

Six, life logic

In order to realize the proper interpretation of the criminal law, the logic of life must be involved in the interpretation of criminal law. Life logic according to the requirement of the life experience and common sense knowledge and experience to explain from the folk and the official text of criminal law embodies the knowledge of abstract rules. Although the principle of strict interpretation to plain meaning interpretation for the basic method of interpretation of criminal law for the criminal law, but the word meaning of abstraction, diversity, variability and the edge of the meaning of the ambiguity, the strict according to word the literal meaning is usually explained strict form, on the criminal protection of security and predictability at the same time, also implies a great risk at the expense of criminal law applicable to the rationality and legitimacy. Interpretation of criminal law must therefore be beyond the form of interpretation according to the logic of life and experience knowledge essence of reasonable explanation, to make up for the deficiency as an official knowledge Abstract criminal rules. (Note: it is battered women syndrome based on the logic of life, common sense, people respect the knowledge, in twentieth Century 80-90 years after America, Canada, Australia, Britain, Singapore and other countries, the court case gradually introduced "" (battered woman syndrome) concept, the long suffering from family violence maltreatment of women in extreme fear forced to kill her husband or cohabitant acts recognized as legitimate defense, or use leniency in meting out punishment to give the wrongdoer a way out, despite its behavior is not for the ongoing illegal segmentation. While China's criminal law scholars on the concept of "battered woman syndrome" has not been recognized, the judicial practice in the long suffering husband violence and abuse women to kill her husband's behavior is not a crime to self-defense, and some even sentence too severe punishment. The author thinks, this kind of dogmatism and formalism approach, not only violates the culpability principle, is not conducive to the realization of justice case processing, and contrary to the social common sense, it is difficult to obtain a wide public recognition, see Zhao Ling: "the butcher's wife: desolate scene", "Southern weekend" carrier "in July 3, 2003; Liu Shuanxia the butcher's wife was sentenced to 12 years in the new theory, new controversy" lost, "Southern Weekend" July 17, 2003 load. )

According to the logic of life principle, judicial persons in the statutory provisions applicable interpretation of criminal law and its application to the case processing, not only should the rules of Criminal Law Abstract deconstruction generally according to the formal logic, criminal jurisprudence and law consciousness, and should be interpreted according to the meaning of life and the true logic, common sense, experience knowledge of the rules of criminal law the general rules of criminal law, in order to make up and recorded in the official knowledge. If the justice in the explanation of application of criminal law, regulations, adhere to the law to abstract the silent, trying to force myself to find out the far fetched, against a sense of justice, be of no great importance. As the surface of case law basis, instead of empirical knowledge and experience to judge explanation and interpretation of criminal law regulations of, it is easy to explain the conclusion and the results contrary to justice and conscience. (Note: the Sun Sheng: "judicial rationality, experience and judicial conscience", and through the use of empirical knowledge and experience to judge interpretation and application of criminal law, not only can the abstract and universal norms of criminal law of concrete, but also can make the public life logic in the official rational rules of interpretation, legislative rules in order to obtain the vitality, the judge's judicial judgment to have social affinity, so as to gain public recognition and respect. Experience, knowledge, reason and other folk knowledge and life logic in applicable interpretation of criminal law text, interpretation of criminal law is the basic theory of knowledge, but also the basic rules of criminal law applicable interpretation. Therefore, some scholars pointed out: "allows the experience knowledge involved in the interpretation of criminal law, and the official opposition and knowledge, to find the balance point through dialogue, is the basic way of interpretation of criminal law." (Note: Zong Jianwen: "criminal law mechanism", Chinese Fangzheng press, 2000 edition, page 139th. )

Of course, the basic restriction of criminal law text as well as the special nature of the legal principle of crime and punishment, apply the logic of life principle should be strictly limited. The logic of life, common sense, experience and knowledge can only have in the criminal law text and its meaning of the words rangeReference and on criminal law text and word meaning definition and explanation. In the illegal behaviors has not form according to the logic of life has substantial penalty case, shall adhere to the principle of strict interpretation, not substantive rationality requirements excuse the logic of life to crime. Only in the form of behavior should constitute elements according to the logic of life the lack of substantive punishability, the logic of life as a guide to judge on the behavior of the interpretation of criminal law the principle of processing or crime lenient punishment shall apply.