Abstract: the main content of substantive criminal law includes the substantive concept of crime, the essence of the interpretation of criminal law, the essence of crime constitution theory, the essence of the legal principle of crime and punishment, its core theory is the theory of social harm and the legal interest; substantive criminal law can be further divided into substantive criminal law with the conservative concept and essence criminal law thoroughly, the substantive criminal law thoroughly view face greater risk of human rights, and how to prevent the risk of human rights should be criminal law scholars' academic mission; conservative view of substantive criminal law is more reasonable, the relative to the substantive criminal law thoroughly the concept of substantive criminal law, conservative view on crime, criminal law loophole filling line three aspects of principles of criminal law, research methods, highlights the basic position itself is different from the concept of substantive criminal law thoroughly.

Keywords: substantive criminal law  Conservatism The bottom line  The flaws of criminal law  Research methods

Recently, research and discussion of substantive criminal law is particularly eye-catching, academic research on this problem began to struggle of the so-called "criminal law school". A few years ago, Professor Chen Xingliang wrote an article about the formalism to reflect the relation between criminal law and substantive criminal law papers, also mentioned China experienced a formal interpretation and substantive interpretation of distinction, and points out that this is in German and Japanese criminal law does not happen phenomenon. Not long ago, I read a book entitled "critical" view Chinese substantive criminal law books, the author was professor Deng Zibin China Academy of Social Sciences, Institute of law, Professor Deng Zibin, Professor Chen Xingliang's guidance is the criminal law student, he proposed to Chinese essence of criminal law should be criticized, but not touch on lightly criticism,[1]As professor Deng Zibin with Professor Chen Xingliang, advocated in basic position (or more) forms of criminal law. The paper makes me very inspired. A man named Liu Yanhong young women to obtain a doctorate of law at Wuhan University, is now a doctor, Professor of criminal law at Southeast University law school student tutor, on the issue of debate, and writing two books directly labeled "substantive criminal law" and "substantive interpretation of criminal law" in the name of the academic monograph, the formation of scale academic outcomes, have certain academic influence.[2]Professor Chen Xingliang once said, in Chinese criminal law scholar, Professor Liu Yanhong is so far the only public statement to a criminal substantive criminal law scholars view position.[3]The essence of criminal law as a focus of the academic circles, some famous scholars expressed their views, such as Zhang Mingkai, Chen Xingliang, Zhou Guangquan, Chen Zhonglin, Feng Yadong and other professors, but they have adopted a different form to explain their own point of view, for this I in related papers I wrote in detail. The author here for the essence of criminal law to talk about personal views, specifically talk about four issues, welcome to discuss the issue and criticism.

A substantive criminal law, the concept of

Substantive, relative to the formalism, is value judgment, the problem is also a method. The essence of criminal law interpretation given value judgment and the nature of all kinds of criminal law, criminal law, criminal phenomenon category concept and theory of crime, theory of punishment, the relationship between crime and punishment of criminal law theory, the starting point and ultimate goal of itself should be said for the realization of substantive justice, itself did not oppose the, but also advocate humanistic care, the protection of human rights.

The main content of criminal law includes the substantive criminal concept, theory, the essence of crime constitution theory, the essence of the legal principle of crime and punishment, the substantial interpretation of criminal law. The core essence of the theory of criminal law is the social harmfulness theory and legal theory, now some scholars think that the theory of social harm is equivalent to or can be modified into civil law theory (the theory of violating legal interests), it is worth our consideration. The substantive principle of legality claim reasonable, rather than the mechanistic understanding of the legal principle of crime and punishment, and some of the more radical scholars even in the premise of different proposed opposed the abolition of the analogical interpretation. The essence of criminal law to substantive explanation theory, adhere to the formal interpretation stance contrasts sharply with the form of criminal law on corruption, such as "object of crime in the crime of the property" understanding, "substantive" interpreted as "material benefit", and some even be interpreted as "interest". Generally speaking, substantive theory according to the requirements of the development of the times, people's interests, development history to interpret the criminal law (objective interpretation).[4]

It should be said, the essence of criminal law development more attention to substantive justice and social values, and thus more conducive to the realization of the general justice, but also more suitable for ruler or managers need to maintain the political and social order, especially by the politicians, the judicial personnel favor, at the same time, the common people full of beautiful sentiment of justice simple is easy to a considerable extent on the essence of criminal law to understand, therefore, the essence of criminal law is very easy to have the tremendous influence.

Relationship between the concept and form of criminal law, the two substantive criminal law

The essence of criminal law is relative to the form of criminal law is concerned, but in the essence of criminal law and criminal law is not completely form be quite distinct from each other, the two in the certain issue is not completely opposite. In fact, the essence of criminal law but also to see the form, but interpretation method of criminal law is different, the value judgment, judgment of the different forms of. This point, I remember professor Deng Zibin in his masterpiece "critical" view China substantive criminal law also talked about, and talk more, emphasize the essence of criminal law there is no clear front and form of criminal law, it is me, you, because some explanation, some propositions and conclusions opinions may be shared by both sides, just side and the emphasis on the different part, find it difficult to tear apart, it is difficult to distinguish.[5]It's really the case. As I understand it the form of criminal law, it is not completely excluded from the reasonable essence of criminal law, criminal law, just pay more attention to the written form justice and other content, pay more attention to prevention of substantive judgment super normative interpretation caused human rights guarantee risk; therefore, I think this kind of sense of the form of criminal law may it is more reasonable, especially its requirements in the crime can not break through the form of written criminal law, but can be specified in a breakthrough in the form of sin (one side of the essence of criminal law), has a reasonable. The basic meaning of substantive criminal law, can be classified as single view of substantive criminal law substantive criminal law and double sided view, or substantive criminal law addressing conservative view of substantive criminal law and criminal law in essence completely semi open view, the view of substantive criminal law and open view. But the substantive criminal law double sided view face greater risk of human rights: the essence of criminal law ignores the protection of human rights obviously loopholes, the essence of criminal law is easy to damage the legal principle of crime and punishment, the essence of criminal law does not restrict judicial power can easily lead to the tyranny of the major risks.

Three, the essence of criminal law with the rule of law risk, researchers should consider how to prevent

Substantive theory has the very strong vitality, but also has the very strong destructive power, the destructive power is strong is the human rights safeguard risk. Therefore, to properly distinguish between substantive theory, take the essence and discard the dross, this is the academic mission dictates, but also criminal law practice mission. But, first of all is the criminal law scholar's academic mission, because the theory guiding practice. The essence is: substantive justice and relatively fair well defined; the definition of special criminal law (not a last resort, and evil for malignant, correction of purpose -- namely through other means can still be corrected). Specifically, the following points: first, to be objective and fair understanding of the essence of criminal law, limitation, legal punishment from the essence of guarantee human rights; second, through the interpretation on substance restrictions, is explained in the crime and against the super standard interpretation, the sin allows the appropriate super standard interpretation; third, adhere to the constitution of crime and crime concept on the formalism of strict limits and specification limits.

Four, advocate the substantive criminal law conservative view, instead of the substantive criminal law open view.

Why should a conservative view of substantive criminal law? Because the substantive criminal law this traditional view is compatible with the advantages of the essence and the formalism and the same point in a certain sense (but some scholars believe that cannot realize the compatible), it is more reasonable. Relative to the substantive criminal law all open view, the conservative nature of criminal law the basic position of substantive criminal law in crime, criminal law loophole filling line three aspects of principles of criminal law, research methods to highlight own different from the full open view.

One is to stick to rigid, formal entry into the bottom line: the crime of rigid and formal position crime. Substantive interpretation of conservative interpretation on substance and open theory advocated crime field interpretation on substance, which is flexible and the essence of crime of position. However, substantial interpretation conservative on pay special attention to the rational kernel absorbed form of criminal law, pay special attention to the fundamental flaw, substantive interpretation of precaution open theory thus, substantive interpretation of conservative theory has more rationality. The essence of the interpretation of full opening of the opposite, that crime on the elastic and substantive position, not the biggest justice of legislation on judicial justice, but the maximum, which is against the essence of interpretation of the conservative. In order to avoid the crime field substantive interpretation of risk (risk of human rights), we must adhere to the conservative stance on crime, as long as the crime, must be conservative, formal review, not allowed to easily into sin, but does not allow the crime phenomenon in judicial practice. However, in the field of crime substantive theory can be established, as long as the related crime, can be through the substantive review, inclusive, allowing non crime phenomenon in judicial practice.

Two is the flaws of criminal law to criminal law legislative loopholes by legislative fill fill principle: criminal law legislative loophole if must fill, the relief way choice is the legislative amendments and supplements, against judicial fill. This position is our country constitution declared, thus has the constitutional basis; at the same time, this position is "legislation law" clearly defined, thus has the Legislation Law (such as legislation according to Article eighth stipulates that "the following matters can only make the law:...... Crime and punishment (four); (five) deprivation of the political rights of citizens, restriction of personal freedom of the mandatory measures and penalties "), and makes the problem become a basic principle of legislation. However, substantive criminal law conservative advocates, in the crime field allows non criminal treatment in judicial practice. Essence of the interpretation and open on the contrary, advocate the loopholes in the law by judicial fill, believe that the judicial officer can reasonably, good faith interpretation of criminal law, and no major risk limits judge engage in crimes of tyranny.

Three is the methodology of criminal law advocate inclusive, open: explore the legislative intent, necessity study, revise and improve the study of criminal law. In the interpretation of criminal law should be the rational kernel, attract more subjective interpretation, should be established to the legislative intent of the principle of interpretation of criminal law and judicial principles, especially in crime judgment situation, should be more to seek legislation to regulate the literal meaning itself (legislation must be through the use of words as the legislative provisions and the legislative intent,) the original intention of legislation here although associated with "legislators intent", but the literal meaning of the text in order to legislative body shows the legislation at that time might have, thus the basic position is still a subjective interpretation. Obviously, this and the objective interpretation theory claims that "the goal of criminal law interpretation is to clarify the provisions of the criminal law interpretation of objective shown on the meaning, rather than criminal legislative legislators meaning, basic position to adapt to the objective need of" advancing with the social reality of the difference. In the criminal law study, should encourage the necessity study, recognition, to perfect the legislation, found itself the objective existence of loopholes, should become an important aspect of research of the criminal law, criminal law of keeping a reasonable tension and vitality, this is also the criminal law scholars' academic mission and academic contribution method. Essence of the interpretation and open on the contrary, against the criminal law legislative intent to explore, research should be opposition to carry out criminal legislation, oppose the accused and amendment to the criminal law and other research methods, this view is too absolute, is extreme, but also not conducive to the development of the criminal law, is disadvantageous to the perfection of criminal legislation, is not conducive to judicial norms, thus undesirable academic position.

Source: "procuratorial daily" in November 18, 2010, Third Edition

Author: Wei Dong, Professor, tutor of doctoral students of Sichuan University School of law.

Description: this blog content slightly increased.