Zhang Mingkai: some related research in the science of criminal law

 

 

Source: Jiangxi Provincial People's Procuratorate network forum, quoted from justice network law blog,Http://lawyerwangqia.fyfz.cn/b/753559, access time:2013Years6Month9Day.

 

 

In 2013 5Month24This afternoon2Point30Points, the famous criminal jurist professor Zhang Mingkai made a presentation entitled "criminal law of some relations in the study of" lectures on politics.Professor Zhang Mingkai from the strong theory and weak theory, theory of competition and the academic consensus, academic criticism and self reflection, value judgment and logical conclusion, intuition and reason, form and essenceThe relationship between six aspects of start thinking vigorous, humorous discourse, won the teachers and students of the bursts of applause. Professor Zhang, we need to pay attention to the weak theory, knowledge need to argue, we want to have critical thinking, we want to know what my own conclusion is value judgment or a logical conclusion, it is important to study law intuition criminal judgment, not only to see the legal positioning but to see the spirit of the law. Students actively today on whether there is a real struggle in school, the four elements of the defect, the justification of the death penalty, specific meet said and that is to say, the distinction between the problems posed to Professor Zhang Mingkai. In this lecture, the students in the theory of criminal law, criminal law, how to learn how to do the academic has many beneficial harvest.

Several relations research in the science of criminal law

-- Professor Zhang Mingkai lecture transcripts

Mei Chuanqiang: very honored to go to China's criminal law, criminal law, a famous contemporary masters, is also our education Changjiang Scholars, ten National Youth jurists, is also the first national outstanding social scientist Professor Zhang Mingkai to our school to do the academic lectures. For the teacher, I do not want to do too much introduction, everyone like me, are very familiar with, even if not seen the teacher himself, but we often in a book, magazine to see Mr. Zhang's academic thought, from this perspective, Miss Zhang is not only criminal law masters, masters, is the teacher, so we love, called miss zhang. Due to more people, the presence of Mr. Zhang fans in particular, in the lecture process and after the lecture, please consciously maintain good order, Caution. Today to participate in lectures, in addition to all of our criminal law professor, Department of all teachers, our doctor, master, and partly from the judicial department of judges, prosecutors and other professional graduate and undergraduate, then we use the warm applause to welcome Mr. Zhang came to our school to give lectures. In order to order, we chose his fans to Miss Zhang. Below please Mr. Zhang.

Zhang Mingkai.

Ladies, gentlemen, good afternoon!

Although I was very reluctant to university lectures, but today I really glad to come and we do an exchange the platform, you may ask why not willing to go to university lectures, because some of my views in the eyes of many people is Zoupian Jian Feng, or deliberately new in order to be different, with a lot of university the teacher's ideas are not the same, I to the University, and some university teacher told me the class view is not the same, so it is seriously disturbed the teaching and scientific research program, and even lead to the teaching and scientific research can not be, almost always in line with the criminal law200Elements of the crime of disturbing social order. A doctor of my students, have graduated, he said to me, with many students also said, his exact words were, "all my articles only criticism of Mr. Zhang can be published, if the article did not criticize the teacher, do not send any magazine which published the magazine to." Shanghai is a university student in the foreign exchange to meet a Tsinghua student, the student just is my guide, who is he asked my students tutor, my students said to Zhang Mingkai, he said, "Oh, we are on the criminal classes a year, our teacher from A to Z criticism Zhang Mingkai was criticized for a year, in the end I what all don't remember, remember a Zhang Mingkai." This is the reason why too want me not to many schools give a lecture, I do in the judiciary, do a little bit more, but a local court, procuratorate let me go to the lecture, I almost never with the local university teacher is sitting in a room, I do not want to see the university teacher's friend. Who, I was worried to disturb their teaching order. Today is really very happy, especially with so many teachers and students together with me, may the teacher told me to me to graduate a lecture, so, I am from the standpoint of research methods, research angle, prepare a topic -- Research on the relationship of criminal law. Then I began to talk, several relations.

First, the strong and weak theory.

Some theory is very strong, like who are so to say, or that it is said some theory; it is weak, you may the theory rarely found in many places, or you find, you'll find out how many people did not approve of. What I want to say at this point inside it, I want to say is, study on criminal law or other laws, study or research, and any other subjects or, must start from the weak theory, the weak theory become stronger and bigger, this research is meaningful, I want to say is this the problem. Our theory of criminal law has a lot of very strong, for example, the social harm is the essential feature, that an act constitutes a crime, we say the serious social harm innocent, said when we say that the criminal law can not enlarge the scope of attack, criminal law should be modest, not willing to carefully analyze the constituent elements, he said innocent when you say the other's point of view in violation of the principle of legality, fail to distinguish between guilt when, as a defendant, when they introduced foreign academic, and then it will not be Chinese abroad, characteristics and so on, there are a lot of.

Many of us tend to think that, if a theory, a point of view has been widely recognized, not criticized, they think it is very authoritative, we think it is very valuable. Many scholars also hope that his theory could be that, in fact, I think, if an idea, a theory can not be criticized, I don't think there's any use, it is only one of the most common sense of a statement, is of no significance. For example, I often give examples, what started, started the implementation of the provisions of the criminal law of the elements of the act, this sentence useful? Useless. Many judicial organs comrades often call me, ask about the case, I asked him, what is up? He said that started the implementation of components in specific provisions of criminal law is to begin, I say this is it useful, he said no. Why not? It is too "to" correct ", too"! So, start killing people is to murder, started a fire to arson, theft is beginning to theft, what does it say? It did not say what, so it no use. For instance, we used to speak of "combining punishment with Leniency" of the criminal policy, but you think what it says? The punishment of punishment, the big wide. Even if we are now talking about "Leniency", it can say what? I don't know, but I think it's sure as a gun, but I think it is not very useful. Perhaps some people say, we are now using the "Leniency" of the criminal policy actually made a lot of changes, I think really, change is not our verbal said "Leniency", but in the "Leniency" of the concept, the penalty penalty, stressed the need to be wide, dare not say so. I just said, that beyond the basic common sense point of view, always criticized, and a point of view has no value, is to see it there may be critical, to falsify theory is useful theory. If we all just stand strong in the theoretical side, only standing on that side, academic may not develop. We think of the cultural revolution, only a theory, there can be no criticism of the theory, we all stand on the side, but in the end, we found, we now see, although the cultural revolution not what law, when there is philosophy, there are many studies humanities social science other, stay valuable? No value. We have many people to refer to in the humanities and social science achievements of the cultural revolution era now? No. Because all the people stood aside, no one dare to speak the weak theory, not the weak theory do greatly strong, let the weak theory and strong theory against, and then let the strong theoretical development, not so. I played some analogy, for example, I think the academic community people, like sitting in a boat, if we all sat on the side of the boat, the boat to turn one hundred percent, is unlikely to move; when the ship sat a lot of people, a person found such the danger, and then to the station to the other side and lead some people to sit on the other side of the ship, the person must be made great contributions. If this analogy is not appropriate, I can also give another analogy, and certainly not appropriate. A leading to Shanghai to become bigger and stronger, Shanghai has very strong, he would put Shanghai called bigger and stronger, this contribution is small; if a leader to Guangdong Zhanjiang better than Guangzhou, Shanghai also large and strong, the people are great. So, always maintain a strong theory, always stand on the side of the pass that, with very little, or no.

I want to talk about professor Hirano Ryuichi of Japan, it is the criminal law scholars of Japan's most authoritative, the University of Tokyo had worked eight years as president, after World War Two, Kyoto University President Ryukawa Yuki has no value to the protection of human rights advocates objectivism, results of the theory, based on the time, Professor Hirano Ryuichi was a student, he is very much in favor of Ryukawa Yuki's theory since then, he and Ryukawa Yuki, also like to advocates objectivism, the result has no value. But for a long time he found, all this way, so he realized that it is not appropriate, the country only a voice is not bad, he said such knowledge to do is boring, so, he went to the Ryo Kawayuki and Chen the pass that way is not the same. Objective to conduct he advocated theory of Will Georgi, he began to act without value way. Go for a period of time, a lot of people this time Japan also go act without value way.60In the late 1990s, Professor Hirano Ryuichi and Ryukawa Yuki in the USA Stanford University met, that Mr Ryukawa Yuki has a big age, he told Hirano Ryuichi, he said that the Japanese criminal law theory, it's theoretical development against me, I have the sunset, then spoke, tears. Professor Hirano Ryuichi in the1963When writing the article, he said, when he said, the Japanese criminal law incredible place in what place, he realized this point, then, Professor Hirano Ryuichi from the60In the late 1990s70In the early 1990s began to turn the valueless result. In the eyes of many people, he seems to go a long way, he's not that. He is to support the vulnerable theory, he is to weak theory become bigger and stronger, bigger and stronger is the debate.

In fact, I read a lot of books, I found a lot of people say, summer Fuli, write a "political science research methods" of such a person, he says, begin from the weak theory, if the previous studies on a theory that is weak, then your contribution may be more. You to support a strong theory, have your support does not matter, because it has very strong, only when its theory is not strong, you to support it, your support is useful. So also the interpersonal relationship, you think, you have a lot of friends, more friends, you won't, really, but when friends have gone from you, suddenly have a friend to help you, you will be moved, very grateful. The same reason, therefore, I so many years, to a large extent,I also want to learn to Mr. Hirano Ryuichi. If I want to go to that, I will feel very relaxed, but I don't have to go through that, to tell you the truth, I walked, I also go very hard. Academy of Social Sciences, two years ago with two graduate students to my study room to say to me, "teacher, you have a sense of loneliness?" It means nobody supported my theory, ask me to have a sense of loneliness, I do not have a positive answer him at that time, I just said that I think I should do. This is the first thing I want to say, the first relationship.

Second, with the formation of consensus of academic debate.

This obviously and there are contact, I want to illustrate a what view do, argue, don't expect the consensus, even formed a consensus to argue again, also want to debate. Without an argument, academic development is not possible. This applies to all the same,If a person is really quite good, all good, all of us say of him, that person must progress is very difficult, if someone says he has what place is not perfect, so that he may have better development, theory.In the humanities and Social Sciences, especially in the field of law, no argument is not normal, because the law basically is a kind of value judgment, every one of us experience, experience and so on will affect his value judgment. So, a historian, once said, "one of the main characteristics of legal person, is in any legal issues, they are divided into opposing teams." In fact, not necessarily the teams, but I also deeply appreciate, is to argue, but a scholar, if you want to convince others, especially other scholars, it is difficult or even impossible to.

For example, regarding the relationship between theft and plunder, I think I have said very clearly, I think I have all the reasons are finished, I even feel that there should be no what can be refuted the room, however, most people still think theft must be secret, as long as the public is robbing. For instance, this semester I in Tsinghua class, I sit in front of all undergraduate students, many of the back of the judges, procurators, procurators are more, I speak after the robbery, quasi robbery, I give two examples, I also speak in another book, I say go to an office a evening, just the office people dozing on the table, a stolen5000Yuan, just out of the office door, in the office of the corridor caught by the security guard, then put the security beaten injured, according to the criminal law269Whoever commits the larceny to resist arrest and uses violence on the spot for robbery, applicable statutory sentence10Years, are to be sentenced to life imprisonment or the death penalty, because he had a serious fight security. B is also an evening to an office, a clerk in the overtime, he uses violence, a clerk to minor injuries, then robbed5000Money, just walk into the aisle was caught by the security guard, he in order to resist arrest, the security a serious fight. For anyone to judge, the punishment shall be in B a, because a is in front of the theft, and B is in front of the robbery. But now, we are of the view that the B form two crime, the first is the common robbery, if a minor injuries, office3Years or above10The following year, second, take security seriously wounded is also a3Years or above10The following year, the combined punishment for several crimes, the minimum sentence3Years, the maximum sentence20Years. How would such a law? Inappropriate. So I said to B, not that, I said the robbery includes theft, I is not the first evaluation of B used violence staff behavior, said he stole5000Element, and then on the spot the use of violence to resist arrest wounded, this will set the robbery after the event, and, in this respect, his punishment is the same with a. But, I say but also on the B, in front of another injury, he took office the clerk to minor injuries, and two of ethylene, an intentional minor injury, another robbery or transformed robbery, so, to B just heavier punishment. Sitting in front of the students nod, agree, sitting in the back of the judges, prosecutors almost shook his head, I don't know what the problem is.

I'm not saying who accept my point of view, I want to explain what? That is to say, your point is not to be accepted, so the debate is unavoidable. We've often heard that, we need to form a consensus, I also say, can we study the consensus, now I have completely given up the hope, I think there can be no consensus, a consensus can not, even that, just means many people say, is not to say that a few people we are in favor of. Almost can not see one hundred percent point support, if a view is the approval of one hundred percent, this view is of no use. Everyone is doomed to die, this view has any objections, no, this view have what use? Useless. As we all know, no use. And I think, argued speaking, our country at present the biggest problem is, this argument is very confused, confusion in where? Chaos in the we did not go to the analysis of various concrete conclusions, the specific point of view to think carefully, deep behind the foundation position, where the difference. I see a lot of people's articles, including very authoritative scholars articles, I found them on specific issues, if there is no contradiction, but the specific problems behind, I see a lot of contradictions, some contradictions basis. Some of our scholars may claim to be of consequence without value, but many of his conclusion was conduct without value, and vice versa.

I always believe that, I think the school should implement to dispute the legal education of undergraduate students in Tsinghua, I in so many years, I very like to undergraduate school, I have not emphasized the student fully accept my point of view. After a case to speak out, not that I asked the students, do you think is the intentional homicide or intentionally hurt to death, I do not ask. I want to ask, you told me that the defendants constitute the crime of intentional homicide reason, the student, teacher, I don't believe he composed the crime of intentional homicide, I claim of intentional injury, I said, I don't care, you told me that constitute the crime of intentional homicide reason. Then another time, students claim of intentional homicide and I said, you told me about the crime of intentional injury reason. I say, of course, also considering the reality in our country, if the sitting judges, prosecutors, would you believe when you feel the case of intentional injury time, you may not be able to set down, why? The trial committee, said to be intentional homicide, so you must speak of intentional homicide of reason, more is where? I may be affected by the teaching abroad, for example, in Germany, would you say that students might not have textbooks, he may have dozens of textbooks, teachers, his assistant will prepare a detailed information to him, this question should be reading what textbooks of how many pages to many pages, a textbook how many pages to many pages, Supreme Court case how many pages to many pages, what local case how many pages to many pages, the list of all, and to the students, students do not take a textbook, he after going to the library to read all the teacher said all these specified from many pages how many pages of information. Such a student he knew what the debate on this issue, what are the various reasons, what substantial differences, reasons behind so, he made clear, and the foreign judicial examination in the analysis of the case must also be such to analysis. This case involved what problem, each question what point of view, what are the pros and cons of various viewpoints, which one do you agree, there is no standard answer. That's fine with me.We are now a lot of law undergraduate education, I feel like a truth taught to students, the homogeneity of the way I feel not good.

I would like to quote the two person, one is "the author against method", he said,"The uniformity of practice is a deceptive, it imposes a foolish echo, only talk about truth, it leads to destruction of reason and imagination, it make the deep insight, it destroyed the young people are the most precious gift -- imagination is extremely strong, it empty education."Another is the physics prize in Nobel Bonn a paragraph,"The belief that there is only one truth, but also have the truth, this is in the world the most profound root of all evil."This is very good understanding, if you think there is only one truth, then you will say it is absolutely correct, he must do it, so people say that don't listen to, that wrong. South Korean law school also has a professor said, "I was most happy is what time? I had finished the course, the students out of the classroom when behind me, students in the debate." Teachers do not have their own ideas to tell the students, I think this is very important, this is our emphasis must be disputed, each person to give full play to the imagination, you can more or less put forward some helpful opinions and ideas, so, the academic can progress. I think we have many students, I think you don't wait until after I read a graduate student say, when reading a graduate student until I read the doctor again, I think from the undergraduate course should start training, such training might be good for you, this is between second.

Third, academic criticism and self reflection.

Still have a connection with the above, this point is what I want to say? I think every one of us should have critical thinking, in addition, we should not only criticize others, should be more self reflection. I just talked to argue, so the debate cannot do without criticism, academic criticism of the real, is what I have just said, not to criticize others, should often criticize yourself, to have critical thinking, non critical thinking is technically difficult to achieve, this is recognized in foreign countries. The critical and non critical thinking, I summed up, there are eight different places.

The first difference is, critical thinking questions all ideas, ask probing questions, and find the right answers, all of it may be questioned, non critical thinking to accept their original idea or accept a face value others statement; the second difference, critical thinking to be honest with yourself, admit you do not know, recognize their limitations, to see their own shortcomings, but also with the corresponding non critical thinking to pretend to know more than written, despite their limitations, that their view is not wrong; a third difference, a very important feature of critical thinking is the problems and controversial issues, as exciting challenges, see where there is a dispute is excited, see where the problem is very happy, the non critical thinking is characterized by what it -- the problems and disputes as to their harm and threat, fear, afraid of the problem the dispute; fourth, critical thinking is to try to understand the complexity, curiosity and patience on this complexity, and are prepared to take the time to solve complex The problem of non critical thinking, lack of patience to complexity, rather puzzled not to understand.

Because of the time, and there are many I will not continue to read. I will cite some examples, for instance, when I talk about Germany's theory, a lot of people have told me too complex, too complicated, there are a lot of people, the traditional four elements can solve the judicial practice ninety-five percent of the cases, so for another five percent cases got so complicated. I think this idea is not good, the criminal law related to each person's life, health, freedom, property, how can you just for five percent on the matter? To tell you the truth, no four elements system, ninety-five percent cases were good, also easy to do, right? Theft, damage and so on three year old can know is a crime, to learn that much, Is it right?? Often the problem that five percent. This argument can not be afraid, I think a lot of people know Foucault, Foucault say,"The intellectual work is analysis through their own professional field, kept on set as a self-evident truth question, shake people's mental habits, behavior and their thinking method, dismantling the familiar and accepted things, to review the regulation and system, on the basis of re issues."The reform also is such, areas which are so, if everybody be accustomed to rule, system, idea, question, how can we improve? We can't progress. So, we must criticize. But I found that criticism of our criminal law is very strange, when you criticize a theory, that he may make your views, this paper found out that a few places with you say, simply say, my experience we now judgment is what like? "You are really bad", say "you are not the good stuff!" I feel this way. The day before I came, I discuss with the doctor, one doctor wrote an article, a small part of this, he criticized my point, my point of view about the eight reasons, he criticized me for one. Then said I, according to my learning habit, you should take my eight reason all batch of down, you can't just pick one, then you also say three, add up to you four, but I have seven reasons you are on the side that you don't say, what is the number of not to do or what is the reason, or is not worth mentioning, I said you must speak clearly. When you want to criticize each other, you have to put all the other reasons are critical, you will spend a lot of time, then each other in turn do just the same, we all this time our academic development obviously will progress very quickly.

That said, as I have said, we can't just criticize others, must be self reflection. When I was very young or when I was young, a bit like to your own face, know the previous articles in question, then write the article also want to equivocate to quote the original article point of view, I decided not to do so, then I think it is not good to do this, it is not good for the reader, to me his academic development is not good, I honestly admit that I have to reflect on, before that what is not a safe place. I think, according to my observation,We have a lot more than a few China, many scholars view is actually the Nazi era Germany's Nazi regime that is the theory of the service, but some of our scholars may not be aware of,Also talking about, do not reflect the views of their own, at what age, what people, not reflection, I think this is very bad. Since the reform and opening up, our law have been developed, but until now, many of us have said, in general our law is very backward, or that we have a whole reflection, however, no individual reflection, we all said the law behind, we didn't say their own point of view, his theory lagging behind that is, the backward reason where? Everyone is very advanced, why our law is very backward? Of course, some people say we don't fall behind, we are very advanced, I do not accept this view. We now know many concepts, concept, it would be one hundred years ago, people decades ago to solve the problem, we may not know it, all the cases we encountered, foreign had met, their precedents accumulated for hundreds of years, I have no what accumulation. So, I think our whole law is still quite backward, we can not only the overall reflection without personal reflection.

Next, I will read the two paragraph, the two paragraph is written by me, why do I have to read it, because2008Beijing has one about on the reform and opening up30Reform and Prospect on Criminal Law Conference must I go to send a message, but not long, a few words on it, I was going a bit, but then I had to go, so I these two words, here for the first time publicly. I have read:

The first section of words, to review the thirty years of reform and opening up in criminal law, it is easy to say, difficult to do. Because the history is different from the photo, may not like to photographic lens, so close to the object. In other words, in order to review the history of the object to be reviewed, and realistic point with a certain distance is necessary, but the thirty years of reform and opening up has been continued to this day, historical moment and review time seems to have no distance, and the thirty years of the theory of complex, role and status of all theories hard to evaluate, more importantly, for thirty years, Chinese political, economic, cultural, national values and happened to turn the world upside down change, the science of criminal law is faithfully reflects these changes, it is difficult to answer. Thirty years of reform and opening of the criminal law, can be objective, historical account or description is another matter, regardless of who is to review the thirty years of reform and opening up of the criminal law will be keen to reflect back problem consciousness and subjective evaluation, therefore, review or left to the criminal person willing to review.

This is a paragraph, second paragraph, I want to say is as follows:

Chinese criminal law development to progress, because the state criminal law is a mirror of culture or, said that criminal law is faithfully reflect the social consciousness of the matter, said that criminal law is the barometer of social morality or law, must keep pace with the times, must be sensitive to reflect the changes in social structure and national values, even if the criminal law the textual representation of the real meaning of immutable and frozen, the criminal law also will continue to change, because the true meaning of changes in social structure and national values of criminal law will fill continuously, the criminal law and any kind of explanation of justice are relative to the specific time, specific fact, if true meaning to explain the fixed the criminal law's authority, the final, will lead to loss of function of criminal law to social change.So, as the code of criminal law may word for word, but the contents of criminal law science is to develop, to progress. The development and progress of the whole country's criminal law depends on each criminal person development and progress in the academic. Any criminal who, whether traditional or insist on innovation or new in order to be different; whether the maintenance Chinese characteristic or the introduction of foreign theories or mix of the two; whether to conduct without value or advocate of consequence without value or take dualism; whether like to criticize others ideas like to create their own theory or is broken and, should have the progress, development. In other words, the criminal law can not in favor of other people's theories, can maintain their own point of view, but must progress, should be developed, if every criminal person just to maintain its position and views have been formed, without the development and progress in the slightest, Chinese criminal law can not have development and progress. To develop, depends on each and every one of us must progress, and each one must examine, must reflect the.

This is what I want to say third relations.

Fourth, value judgment and logical conclusion.

The logical conclusion that I was in a very broad sense, that is the conclusion you must admit that it is not the same, but the value judgment, value judgment is everyone all aspects of his cause he will put forward a evaluation of his own. In this respect, what I want to say? Don't put their own value judgment as of course objective, also don't take people's value judgment as a logical conclusion, as sufficient reason. We must accept the logical conclusion, but we do not have to accept their own or other people's value judgment. The criminal law and other law as is actually a kind of value judgment, the difficulty lies in here.

2010Years, in the criminal law amendment (eight) published before, Tsinghua University has a master of laws, to write about the sale of organs of papers, the criminal law amendment (eight) has not been released, there is no organization to sell organs sin, how does that do? He wrote the article, the first part even adults to betray his organs so hurt this commitment is invalid on his body, is that adults to one of his kidneys to sell, no one forced him to also did not deceive him, sell5Million dollars, the kidney is one less, it was seriously injured, he thinks this commitment is invalid. Then he to prove what? The argument of this organization and the sale of human organs to constitute the crime of illegal business operation and can not be the crime of intentional injury. I asked him, I said to you the first chapter of logic, since the sale of organs of body injury commitment is invalid, it shall decide on what crime organization sell human organs behavior? The crime of intentional injury. I said why don't you come to this conclusion? He said if the crime of intentional injury case, the organs are doctors, so the doctor too big risk. Then he discusses constitute the crime of illegal business operation when I then asked him, I said, if the doctor knows is the sale of organs, doctors removed the uncertainty of illegal business crime accomplice? He said that cannot be determined. Why do I say? He said the risk that doctors too big or not appropriate. I said your father and mother is a doctor? He also wondered, how do you know? I say the whole world knows. His house is certainly when the doctor, right? He is a doctor. So, right? Do you want to change a person, if another student, his parents died of medical accidents, then write this article that is not the same, right? The victim's commitment is invalid, the doctor constitute the crime of intentional injury crime, right? You see, a kinship, decided his judgement.

Amendment (eight) after the announcement, and later, I received a letter from a Jiangxi high school teacher for me, I don't know, but I said I did not return to him the truth. In his letter, in this amendment (eight) discuss, dangerous driving you into sin, I am positive attitude, I made a lot of views on the Internet, to decide, but now my attitude has changed, why? One of my classmates is very good when the civil servants, will one day drunk driving was caught, now faces a criminal sentenced to criminal detention, how can it? He felt, you see, one of my classmates is so good, because of drunk driving a car, civil servants also when not, what are not! This approach to a180Degree turn, why? Because of good students caught. This obviously this is a judgment of value.

The value judgment, I think when we do research to doubt, make a value judgment when you have doubt, you're thinking about your own reason, what reason is based on making such a judgment of value, what factors affect you. The value of others judge you the same, you must be very cautious, and even very alert. Recently, the risk of criminal law, we now say, are derived from what? In fact derived from well-developed industrial, natural science developed, high-tech developed, dangerous activities more and more, but also this fact in20At the beginning of the century, leading to a theory of what? The new negligence theory, is to say that you have a look, industrial or mining what the development of high-speed railway and so on, all these are dangerous, so what do we do? We can't say it the result of, you say it is a negligent crime, so the new negligence theory, the new theory of negligence is why? Limit of negligence crime punishment scope, time, as long as you build the airport expressway under construction, mining of time as long as you follow the rules of conduct, behavior standard, then you're not negligent crime, the new negligence theory advocated limiting the scope of punishment from science and technology development, industrial development, risk of criminal theory now expand the scope of punishment, they increase the dangerous crime, and holds that strict liability and so on, also stems from the fact that. Let me put it another wayThe new negligence theory, or the risk of criminal law theory, or, is a kind of value judgment, not a logical conclusion, must remain vigilant on both of them, are due to the fact, is the so-called risk society, you say that now the society is a risk society as well, is a dangerous social, like the.

      Even if you have a lot of empirical materials, done a lot of research demonstration, you these according to empirical yourself do the so-called material research conclusion, also not necessarily is the logical conclusion, still may be those who value judgment. I for example,1975Years, USA released that year Columbia DC gun ban, all American have2Million5Thousands of people died in gun,20Million people were injured, in a gun case at that time, Columbia SEZs have285Murder in the155People with guns, and60%The robbery,26%The murder case involving firearms, that in that year, Columbia SAR issued a decree, that gun ban,20Years later, the number of American died in gun case up to a year3Million6Thousands of people, that is2Million5Now, rising to3Million6That is, when60%Belongs to the gun case, later80%, so some people come to the conclusion, that gun control does not reduce violent crime, sounds like you you think it is a conclusion of course, logical conclusion, you think about it, the original does not limit the gun, every dead2Million5Now, a gun, die each year3Million6The more limited, gun kills more, you will feel it is an unshakable conclusion, but in fact it, and the ratio is nothing, if1975Years Columbia DC gun ban does not publish it, so20Years later, how much people died in the shooting case, do not know, right? It is also possible, if not the gun ban it, that20Years later, more than3Million6Ah, may also5Million6, but who also say not clear, the humanities and social science, the trouble in this place. Our country,2000Years, the crime of intentional homicide cases was significantly reduced, to2010Years, seems to have been the2000Years of2Points1Now, we each year10The number of million of intentional homicide is1.03, each10Million people every year only1.03Personal killing, this with Japan almost, that Japan is every10Million people annually intentional homicide perennial wandering in the1A to1.1Occasionally1.2, and occasionally to0.9First, I want to explain a problem, our country2000Since the approval right of death penalty from the Supreme Court, right? Arguably, the death penalty is used less and less, but we intentionally killing less and less, so I can draw a conclusion, the death penalty for murder has no effect on the curb,? No, but I think this is not a conclusive conclusion. I want to talk on the other hand is, American, Britain, France, Germany and Japan, this5Countries, Japan I just say, Japan every year10The number of million people murder, USA is very high, USA each10Million people each year5.5To6Personal killing, and the murder American does not contain an attempted murder, other countries including the UK, are, French, Germany? Each10Million people each year3.5Kill or so people, but Britain, Germany, France is the abolition of the death penalty, the crime of intentionally killing the abolition of the death penalty in the three countries than for the other two did not abolish the death penalty state than a high, higher than in Japan, more than American low, right? This conclusion can you go out, the death penalty is the America most, in the five countries, with more than Japan, but its incidence of intentional homicide is still very high, it can be said in USA death did not use? I dare not say so, I can also said, right? You can have what use? Do you have a death penalty, murder in your country or the highest, but the family each other to refute me easily, if USA no death penalty, each10Million people a year may be15People kill not only5Man, right? The Japanese? Although Japan had the death penalty, but the Japanese sentence is very light, the crime of intentional homicide probation rate nearly twenty percent, it will be a murderer who nearly twenty percent people were sentenced to probation, where I go often speak of a defendant, Japanese murderer was sentenced to the average how many years? The average sentenced6Years,6After years in prison,3Years after the parole, kill the person sitting3Years out, so the Japanese pop this sentence, called a kill three years, killing a person sitting3Years out, but its murder rate, in western countries, the lowest in the developed countries, which can tell us what conclusion? What conclusion is true, what conclusion is unreliable? We must think of another possibility.

I think ah, our criminal law or legal research or even the whole,Many of us have our own value judgment as a logical conclusion, put their own value judgment as a not overturn the conclusions, this is not good,Not in what place? You own the value judgment you are generated based on many factors, another person, these factors have come to the conclusion based on may not be the same, when we think this conclusion is a value judgment, this conclusion may not be reliable, will force us to find new evidence, find new reasons, found new problems, new conclusion, as we once thought that is not reliable to his value judgment is a sure conclusion when, we will come, oh, that is so, we will no longer to do further study, no further reflection, I think this is inappropriate, so we must know their conclusion is actually a kind of value judgment, or a logical conclusion, must points clear, first distinguish clearly, and then face the logical conclusion of others, you don't want to overthrow, because only so. But I think in the humanities and social science, this kind of conclusion of course is actually very little. If you know is a kind of value judgment, whether you or others, must be careful, must return to judge you on some occasions.

Next.

The fifth point, intuition and reason.

In this part, I want to say what, I want to say it is important to find reasons for the view, but form a good intuition may be more important, especially for the judges, prosecutors, I think there is a good intuition than anything else.2010Years, the case of Hubei, the park a tigress estrus, but the park no male tiger, like the tiger, sent to the Hunan zoo to mate, managers say send, the following people say this tiger is to pass the competent forestry authorities approved, have to transport tiger C. The administration says, oh, come on, you go who knows what time they number of ah, hurry up, hurry up and carry it, results are not yet out of Hubei, the car stopped by the police. What the police, transport? Tiger. Operation tiger card? No. So, the related personnel to arrest, detention, criminal detention, detention after sent to the procuratorate, arrest, procuratorate also caught, then to the time, a prosecutor to call me, I don't know him, he told me about this case. He said Mr. Zhang ah, intuition, I think this case can not be fixed, but I can not find a reason not to set it. I say this intuition is good to you, I say you do not feel the set can not be, why ask me? He said I just feel intuition should not be too, but I can't find out the reason, so I want to ask you. I said, why do you not find a reason? He said, his act is fully consistent with the illegal transport of precious, endangered wild animal sin ah, how do I say? He said illegal. I said how illegal? Transport to the competent forestry department, he has not been approved, the illegal; second, drove the truck tiger, has brought hundreds of kilometers, transportation; third, the transportation is the tiger, precious, endangered wild animal; fourth, it is intentional, how could not be shipped a tiger? I said to him, I said the crime stipulated in the criminal law is to protect what? He didn't answer me. I said the criminal law the crime is not in order to protect the forest department is the authority, in order to protect the rare, endangered wild animal, this behavior is the destruction of precious wild animal resources behavior? It is not ah, it is not to let the tiger more several ones? How could the destruction of resources? Increase in resources. Here I want to say what the problem? I just said, his intuition makes him in this case, when the case, he felt he should not be, even if he can't find out the reason, this intuition plays the role of a great.

I mentioned in many occasions, inverted syllogism, actually this is not my invention, the jurisprudence of the foreign criminal law or, or, are saying so, I think if we have a judge, prosecutor would also have experience greatly, when faced with a case, we often the first conclusion, then go to find the major premise of applicable law, and then look at the fact Is it right? Accords with the provisions of the law, if the, well, on the set of this crime, does not meet the time, we must find can find other law, can not find the time we would say that we'll have a look a law, can not take this law to explain, explain again, we can put this fact to sum up, then, to make their own conclusions according to this point, very normal. In other words, have a good intuition, means that we interpret the criminal law when the facts of the case, induction is a direction. What language you choose, what kind of concept to summarize this fact, it is very important. When you don't have a direction, not a prediction, your case is not the formation of induction.

For example, I often say, if you said in that a so-called about the crime of intentional destruction of property when your mind, no, not a pre judgment on a case, you may not know how to sum up the facts. For example, the cage raised inside the bird, the bird is very valuable, worth tens of thousands of people, morning bird man put the cage mentioned inside a woods, that call what, what is this? Go for a walk in a quiet place with a bird? There are birds to the park? The dog, liuniao ah? An accused person, the door to the cage open, the bird flew away. When you don't want to, a little intuition is not, and you don't hang the bait to crime when, how do you go to conclude this fact? That is to make the beautiful birds return to the beauty of nature? You so summarizes how might be guilty? Right? Not guilty. But when your mind think, the bird flew away, the victim has lost tens of thousands of, can this be intentional destruction of property? When you have the intuition, you have to explain275A, what is destroyed? Then the case name not destroyed? If you use the Japanese concept, what is destroyed? The property value or use value decrease or loss of all acts, when called destroyed. You think, this man's behavior that people the property value is lost, so the composition of the crime. If you have no such an intuition, not, you this case you wouldn't be toward you formed this intuition direction to explain the intentional destruction of property crime, you wouldn't have to think, what is destroyed? You won't go to think, this case how inductive, so a lot of cases are so, especially those who seem controversial cases, in fact most of the time is the first conclusion, I often is the case, when the teacher, in my practice department part-time or, encountered a difficult cases, I basically is the first conclusion, then you say what? My instinct, I feel, I will form an opinion, I look for reasons, find a reason, to find the legal basis, then I will adhere to this conclusion I. Of course, there are not time, the97When first released years I have been in the criminal law for public indecency for punishment according to, because all too soon the98When I wrote the "indecency" probing into the questions of that article, I found in Shanghai and Ji'nan have such cases, one case is two people, a man and a woman, love in the park. A man and a woman, having sex in the back row of the cinema, when making love, also make a hullabaloo about movies, affect a family. I think it should be convicted, but I find it, I can't find the, no way, no, can't find a reason, the law is not stipulated, you said assembled licentious actives? The family two people, right? You said organizations pornographic performances? They didn't want you to see. But, even so, in most case, I do not think what basically wrong intuition.

Of course I am not saying can only rely on intuition, I said very clearly, right?With the intuition, you just have a pre sentence, you have to find reasons, to find a legal basis, if you go abroad, some of the words of the book, I think, to this, should believe firmly, for example, Kauffman also stressed that intuition, or Holmes, Posner is also good, they all speak of this,For example, Posner said when you're driving, suddenly saw a front of the child, you must be the instinct of braking or steering wheel, when there was no a motorist in thinking, I am straight through good or turn a curved or crushing him or not to kill him good? No, it is an instinct, an instinct, there can be no room for thinking, he is to go through this and say. That, a century ago, known as the great Kent judge, he explained his method of formation judgment, he is first of all their grasp of the facts of the case, and he said, I saw the justice of the moral sense, in half the time decided judge activities, then I sat down and search of authority, sometimes I may be trapped on a technical rules, but I can almost always find my case principle. This is what the intuition, prior to formation of a just conclusion, and then find the authority, the authority is found for what? Find, find the law rules. And he said, I always find. There are a lot of other people, I will not list them.

The question now is, how do we get good intuition? This is a very important point. I often tell my Tsinghua students said, I said that four years down the line, if you can form a good intuition, I said, that even if you the law well, I go like this, but I really can't tell out how to form a good intuition, if you really want to talk to me. So, my experience, first of all, you must be very good reading, you will read a lot, know a lot of you, you have to observe the society, you have to understand the general people, you must be very concerned about others, you have to know what they want, what they need, what people need, like want to what, I think this is very important, not just consider what they need, what their ideas, as a norm of law is formulated for the general, former British judges are superior, not with civilian contact, don't so, should contact with civilians; German professor Jacobs said, the University of Bonn, every afternoon to go to the supermarket, what what flea market and so on to go, do not want to buy things, is to understand the general people, one day at noon, I in Bonn, he would invite the I after dinner, he is holding an umbrella himself out to. So, I always want to learn them, Beijing Metro crowded ah, I sometimes crowded subway, bus is also very crowded, I also often crowded bus, I want the car to listen to what the general chat, listen to what they say, sometimes hear them quarrel, what to see, they asked why fight, when taking a taxi, I usually have to put some cases out to ask the taxi driver, I will go to see their judgment and I have to judge whether there is difference.

Once, it was a few years ago, Peking University and Tsinghua university canteen exploded at the same time, but no deaths, right? After a few days, the suspect was caught, I was chatting with a taxi driver, I said what do you think of the suspect should be how many? Death penalty. I said not one died, only a few minor injuries you will be sentenced to death? The Peking University and Tsinghua recruit students is the most outstanding, a killing so many good, how's that? The risk is too big, the death penalty! Behind him and then said, I do not know this shouldn't repeat here, he said it is fried a police building it. How can you clap? This is obviously not clapping for? I'm saying his. This indicates that he still has his views on some problems.

The case of Xu Ting, controversial, many of us are on the Internet that he was not guilty, right? But, when I am on the side of the road in a taxi, when I met a real person to ask him, no one thought Xuting innocence, this makes me very touched, I remember very clearly, I sit to Deshengmen from Tsinghua taxi, come to the Desheng bridge, I put the case finished, tell the taxi driver, the taxi driver and he doesn't know the Xu Ting case, I speak to him, he said no, it should be when the crime, was not his money, how can you take so much?So we say, what Is it right? Netizen opinion, is? Maybe sometimes really doubtful. Not a real name, say, say to also be indifferent to, the reality of this person, I face him, he would say Xu innocent, he may feel shy openings,How so greedy, took17Million? How can I say he is innocent of the crime? It's not that I was so greedy? Do not like, do not like, I think, is particularly important to understand the general people, when you write some of our people, most people think so, but what on what, but I, I also dare not say, most people think so, because I am in the subway asked who, on the car asked who, I can't do this note, when I say most people at least somewhat I was asked several people, there is a Japanese scholars say, what is the average person, is on the street, the man you met is the ordinary people, of course, mental illness, etc. except, for?

You must be a man of justice, this point is very important, only oneself is just to draw the conclusion of justice, therefore, I always say that sentence, must be filled with justice, the only way you can have good instincts,But the students, I think we must see a large number of cases, look at the case when you must first determine, feel guilty or not guilty, think is a felony or misdemeanor, I often tell the story, in time, several graduate students, one of whom he wrote this case, I asked him guilty or not guilty, if what is sin, he felt very embarrassed, he would find a student with the dormitory to study engineering, that you help me have a look, this case does not constitute a crime, they say I am not in the school, to see what. Oh dear. Let me show you, The students read, read after the students said that this should be the crime, so serious, if it is not a crime, that is not what the crime. I think the students, you are blind, you are guilty, that is definitely wrong, then the interpretation of the reasoning, finally draws the conclusion, innocent. I got here, I said what do you engage in criminal cases, so obvious how is innocent. He said, the teacher ah, I learned7Years how the law as a legal? Why do I say so exclamation. He told me, I said very simple, people have a sense of justice, you have no. You are not a sense of justice, by inference, deduction, you come to the conclusion, how is that possible? Impossible.So you must be justice, it would have a good intuition, have good intuition that you this conclusion basically is appropriate, the rest is can not find a legal basis. So I am always stressed, for learning and one is completely uniform.

Sixth, the form and substance.

I don't speak of forms of interpretation and interpretation on substance debate, there is no time to speak to such problems, on this issue I have quite a lot of articles, in my opinion forms explain so-called is no explanation, right?Interpretation is the essence of law, discusses the legal purpose.Here I want to say two small problems.

First want to say what, that is our relationship to a matters of law position and its actual content we want to see to understand a little, not clear this statement, I mean, we learn what method, you just don't look at the concept, you don't just watch it in the legal position in what not to see its actual content, you should see its legal orientation, but you have to see what exactly it is the actual content. If you simply look at the legal position, you have a lot of inexplicable. The most typical example, it is clear that the reeducation through labor, the legal position of administrative penalty, a fine of a punishment, a punishment of detention is, listen, fines, detention than the reeducation through labor, you see, how serious the legal position of nature, more serious, but when I tell you, a man of stealing1000Yuan, large amount, sentenced to three months in detention, another person not steal1000Only steal800Reeducation through labor, two years before, which do you choose? Who will choose the crime, because you are sentenced to three months in detention, you say, you this is subject to punishment, he didn't be subjected to criminal punishment. May not be punished by law at best, right? If you want to listen to you to choose. But now we feel this is not appropriate, then where is the problem? You should see the reeducation through labor sounds legal positioning is not punishment, it with the penalty actually what is the difference? When we discussed these days have a classmate wrote special confiscation, forfeiture claim to follow the principle of proportionality, I very much agree with this conclusion, I argue that so. But you think, why you confiscate criminal tools have a proportion principle? You have to see his actual content or punishment, otherwise, you'll find out you get going. With the value of tens of millions of ship smuggling something, constitute the crime of smuggling, the tens of millions of ship is the criminal tools, you forfeit? It is small, what is the big ah: focus on capital operation, stock market, up to dozens of Yijibai billion to manipulate. Hundreds of million criminal tools, and then give you confiscate confiscation, you go on? You confiscated won't go down, you must try various devices to, or say you this is not a crime, you are either. You may also take other measures, you cannot be confiscated so much, why? We see the essence of it, its substantive content, you don't see the point. On this point, I can form of penalty concept to understand the foreign now speak and substantial penalty concept, the five principal punishments and several additional punishment prescribed form of penalty concept is our criminal law, it is form, substantial? The essence of actually many, he compared with the penalty, brings to the defendant's pain is not necessarily small, even large, we want to know it, understand it then you can know what to do in what kind of situation, if the legal positioning only stay in these measures, these matters. We will feel at ease and justified, that is, the reeducation through labor? Is! Anyway, administrative punishment, administrative punishment of light to a penalty, so do not need to change, we will feel normal. You only see the very essence of place, you will feel this is not normal.

And the "Criminal Procedure Law" on the discretionary non prosecution, our criminal law circles Comrades always said that is not considered a crime, I always do not approve of this view.They always think that is not considered a crime, only the court to convict. But you said the family circumstances are minor, and "Criminal Procedure Law" also stipulates people can still appeal, obviously harmful thing, had a criminal record of the people there, right? After going abroad is very troublesome, how can you not admit it, you said that prosecutors announced they act constitutes a crime, the court declared but not. Why don't you admit it? This involves we just see it legal and did not see its actual content, it and the court convicted exempted from punishment and the difference between how much? I think actually little difference.

The second point, the crime although should follow the principle of legality, this no doubt, but must know that the real standard of crime. The standard form of no problem, we usually speak standard is talking about, say, to comply with the principle of legality, to comply with the provisions of the criminal law on the constitution of this kind, this is no problem. At this point I want to speak, for example our constitution interpretation, you can't take the words too literally, you must know the elements it is to explain what the crime, criminal law is to protect what, do not consider this. Many people may know that I am not in favor of desirable of the four elements, but I dare to say, I am no less than that of a scholar of criminal law protection to pay attention to objective or statement benefit or object level, if every sin and specific I is the first to investigate the crime stipulated in the criminal law is to protect what, this so important. I often cite examples of this in the time of the lecture: Zhang San met a beggar, the beggar said: "in the winter, I have no place to go to bed now, you can ask the public security organ and told me to say I stole your1000Pieces of money, then I have to admit, this sentence I five months of detention, the arrival of spring, I come out again." Zhang San: "OK, I will help you." So, finally, the court sentenced the beggar five months of detention. The facts of the crime of false accusation made, others, let others to prison for five months, this course is intended to subject others to criminal investigation, right? And it served five months in prison. This is a case of the. The second case: Li Si, this is my fiction, that is somewhat according to. USA 10 years ago shooting, killed ten people, so far the case did not break, Li four with USA police said: "you that ten years ago shooting is China Wang Wugan, where is he now where, how he's doing it." In the two case, Li Si also invented the facts of the crime of false accusation, others, attempt to subject others to criminal investigation, also said that they killed a dozen. The guilty? Which innocence? Or are guilty, not guilty? You look243You do not check out. How do you read? You just look at the words you can't read it, you must know the criminal law crime of false accusation against nature for what purpose, against a crime where. This is the essence of the law. If the provisions of the criminal law crime of false accusation is to protect the personal rights of citizens, three innocent, right? Why? Commitment, beggar agreed, right? He agreed to shut him set three crime how possibly in prison, be he fraud, cheat prison food, you can not set the crime of false accusation. Li Si, I think, he let Wang Wu's personal freedom is violated, USA so high handed, don't say Wang Wu can't go American, Wang Wu went to other countries do not dare to go, he will be always on tenterhooks, in Chinese right? If the provisions of the criminal law of the crime is not in order to protect the human right is to protect the judicial activities, three guilty, why? The public prosecutor, do a misjudged case, spend manpower, do a misjudged case, three. Lee four innocent, why? We also America judicial activities normal abnormal? Regardless, he why! It's not normal is not normal, tell us nothing, right? If you say that the criminal law crime of false accusation two protection, is a complex object, two are innocent, why? Zhang San only violated judicial activity did not infringe the personal rights, Li Si only violated human rights did not infringe judicial activities, two are innocent. So that a complex object can not casually said, many of us still speak the complex object, some more than two, three to four, according to this down, not a crime. This is very important.

Next, because the time is not a lot, I also want to speak a little, in the three stratum theory, elements we often many people say it is a form of judgment,In fact, constitution is also a substantial judgment. But the ground for elimination of misfeasance is more substantial judgment.Elements of the compliance judgment is not beyond the scope of the provisions of the criminal law, but the law negates the subject is beyond the scope of the provisions of the criminal law, criminal law makes no provision for illegal resistance but reason is possible. So the more substantial judging means, for example the behavior has violated a law, but it Is it right? Protection has better benefit or at least equal rights, or the so-called victim he Is it right? Gave up his legal interests. I found our judicial problems in this respect too much, I sent an article in the "Tsinghua law" first period this year, the analysis is about the crime of intentional injury judicial status in criminal law, this article is originated from the I found one case, I find there are two kinds of problems. The first is the justifiable defense, many regarded as the crime of intentional injury. I did not understand why our petitions events40%Comes to light damage, then I know that, because of the large number of identified as not intentional injury identified as intentional injury. I take for example: a person into a stall to buy drugs, the drug open after reading just take medicine away, don't give him the money, put the medicine away, sell drugs to catch up with "you how not to give money to my medicine?" Then buy medicine man hit sell drugs, sell drugs punched the past is the bridge of the nose fracture or what, minor injuries, sell medicine man was found guilty of intentional injury crime. I think this is justifiable defence typical well, the decision should not put people into minor injuries, how can the injuries that excessive defense?! But the decision not to say excessive defense, you have to defend each other you must force greater than he, to stop him, right? You don't say power like him do, that means two boxing down, then you blow past, I blow over, strength big, you have to play he couldn't punch, to stop the illegal violation, right? But we have deliberately hurt.

There is also a case, more than one, time, I can only give you a: before the amendment eight, a small, drink drink much, drive back to the village, just when parking, residential security standing there, he lost his temper to residential security, "you how do they get? My car was scratched or security ", said:" the car for you, the local monitoring just does not shine, we always can not find." Then he called security, security to the area of the door, the door and security. The man stopped, he didn't go home, go to the door of the community, to the security of three consecutive boxing, also did not stop mean, security is also a punch, security can play, he also can play, the security is not injured, he the nasal bone fracture, injuries. People lose money to security, security is really no money, the family security sentenced to prison, three years probation is not carried out. You say that sentence Chinese case can not?

Another problem I want to say now, when many leading to judicial organs, I tell the things they said: "we can't tell who begin after who." Because I told them about the point is:The first is the unlawful infringement, after the start is justifiable defence, a minor injuries are not guilty, I have this idea.How for two people how to fight not illegal, but as long as there is one active beatings, you are illegal, as long as you do not run, the people behind can defense. You can't let people back, right? You let him continue to play, how has this truth. Why we are hitting more? Hit you, not hurt you also won't call the police, right, without the police, you see you, I to take advantage of it. I hit you, you hit back beat me into minor injuries, sorry, you will not only lose money you need. I beat you to minor injuries, you fight back take me seriously, you're going to jail, was seriously injured, but I don't go to jail, become victims, where price oneself out of the market, one million, one million, eight hundred thousand. Our judicial running back and forth, "the other side to eight hundred thousand you try out" say no, and ran to the side "you again a bit less." You do this thing. In my opinion, each of you go home, no need for civil, family is justifiable defence. Now not clear who should make the first move after who hands, that is to fight with each other, I mention was fighting each other is legal. Fight me is the two person to speak of the fight. Fighting each other to minor injuries is legitimate, why I say so? The victim's commitment. First of all, everyoneInvalid commitment to life, this in the world is not in dispute,I don't speak; secondly,The serious commitment are not effective, there are arguments in the worldThird, we don't speak,Is effective for minor injuries of the commitment, the whole world in favor of.In our country, I haven't seen anyone who opposes said slightly injured commitment is invalid, and that the commitment is an effective, some people even think seriously promise are effective. Since that is fighting each other, you and I play when I know you may take me injuries I fight you, not that I agree with you beat me into minor injuries? Why I fight and you otherwise? How can the world is such a truth: I can with you, I can beat you to minor injuries, but you can't beat me into minor injuries, such logic? No such logic. Think of two people two people gambling, gambling when everyone knew he would lose, and others to bet, lost you can say each other constitute the crime of property violation? That won't happen, will it? Why? You promised, no violation of your will. Now that you have two people playing, you know may win know may be lost, know you could beat people into minor injuries, also know that others may bring you into the wound, then of course also promised, as promised, you this minor health law does not protect, that since this is the case, the other bucket beaten into a minor injuries is not illegal, is legitimate. There will be a lot of people say, do not violate the "criminal law" will violate the "Public Security Management Punishment Law", I checked, not in violation of Public Security Administration Punishment Law, "" about this problem in two places, the first is in the chapter to disturb public order, it is the Gang fighting, I have "criminal law" about the crime of affray, "Public Security Management Punishment Law" about the gang fighting, I say is two, because a large number of cases is two people; another is about the infringement of personal rights, fight it not speak, but speak of beating others, at that time fighting each other can not say it is beating others, two people based on consensus and beating each other, how guilty, innocent. I think to do the nature of judgment, if so, I think a lot of reducing our nation's injury case, I am not for this purpose, it is I found such problems in the study, I have just told us the crime of intentional homicide incidence with Japan about the same, but we hurt crime incidence, the conviction rate, whether it is according to the total population ratio, or by the injury crime and crime of intentional homicide rate than, or by the deliberate hurt crime and theft than, our mayhem conviction rate is three times that of Japan and so on, amazing. At the time the overseas discussions of self-defense self-defense, a lot of large number of cases, in Chinese, couldn't find. Early last year, a prosecutor to my office to pay New Year's call, when I talked about this question, I said you so many years do self-defense case? No. We have no justifiable defense case, not one." Last week, when I do a report at the Dalian Maritime University in Liaoning, is the basic job of judges and prosecutors in the hearing, a man asked me, also asked this question, I say you do have justifiable defense cases seen self-defense case? "No, for so many years without a." I think impassability, why we are not. I think we just watch the people form the wounded man, we have no real to see the wounded man his legal interest of criminal law in the circumstances to protect it. We don't have to consider, if you do not consider this problem, the law's meaning is not revealed, when the true meaning of the law has not revealed you apply it will be said to be illegal, so I think we must seize the real problem, not only form. Everybody thinks,If we interpret the law only to rely on the dictionary, just go to the literal meaning, does not need the law! What do Chinese Southwest University of Political Science and Law, southwest university can do, right?!But, according to my experience, interpretation that science Chinese laws against people we learn the law of people do not know how far worse. We have two degree in Tsinghua, I not only have a law school student in the lecture, every time a Chinese students there, that Chinese student no matter he is usually do homework or final exam, may not pass a law school student. If it is a formal explanation, the dictionary can know the true meaning of he should than our law students good multi ah, not. So the essence of something very important, but not because I told you that I advocate the essence of violation of the legal principle of crime and punishment, can not have this idea, I think this is a kind of prejudice, must be found true meaning in the premise of criminal law principle of legality, to achieve substantive interpretation. I have also prepared some relationship, but I think there are some to speak up may take too much time, Mei teacher let me speak for 1.5 hours, I Is it right? Has more than ten minutes? I think for a little more time here and interaction, listen to their ideas.

 

Student: teacher Hello, I think the concurrence problem ask a question about the kidnapping crime and the crime of illegal detention, is now a company it is through the sale of illegal collection, some citizens information, engage in fraudulent activities, he is an employee he uses these information reselling to someone else, profit from ten thousand yuan, the company boss know, finding him, let him compensation company loss two hundred thousand, the staff does not have a Ershiwanlai, the boss says you take fifty thousand line, and then put the buckle down, then the money to his friends, his friends and relatives for thirty thousand, and report the police, the boss caught, learned in the seizure process and beat and scold behaviors. Some people think that constitute the crime of kidnapping, does not constitute the provisions of the supreme law of the unlawful debt constitutes the crime of illegal detention, the case is enough to illegal debt?

Zhang Mingkai: I think this not constitute illegal detention, because he is not illegal debt is not fixed, this very formal. I will speak about the judicial interpretation of the meaning of judicial interpretation, because think kidnapping is too heavy, so238Article3"For repayment of the debt" to extend it, expanded to include illegal debt, since illegal debt is, this action caused the actual loss to the unit, so that the debt is not illegal, it is more valid than illegal debt debt, which is more likely to set up illegal detention crime, why is it form its name not illegal debt, not illegal debt don't call between legitimate debts between both belong to the kidnapping? This is impossible, since the legal debt, the debt is illegal238The debt, then fall somewhere in the middle of the how to be excluded, decide to kidnap? On? This is the judicial interpretation I speak, say according to judicial interpretation of the words you this case set the crime of illegal detention is no problem.

Student: teacher, I may be more excited, directly to the microphone rob come over, I have a controversial case would like to ask you. There are two people, is a fellow colleague, one dayADrink a little wine, go andBPlaying cards, two people each other because of some trivial happened pulling, pulling process to the brand Museum at the entrance, the resultsBA pushAFell,AThe head to the back on the road, he died. Procuratorate prosecution is intentional injury, but I think that his behavior is no harm intended, so I think we should set into deaths caused by negligence. But before the guiding case issued by the Supreme People's court which has a very similar case, it think that the behavior is the general assault is also harmful intentionally, because it believes that although beaten not constitute the crime of intentional injury, but it does not constitute a reason is because there is no minor injuries above results, rather than because this assault has not deliberately hurt, I would like to ask you for this case is how to read?

Zhang Mingkai: I'm sure that is causing death, even beating behavior does not necessarily mean that the intentional harm, and the front and back you say this case is not exactly the same. This case I think set of intentional injury may not be appropriate.

Student: teacher Hello, I didn't ask for a specific case, I think you just talk to ask a question, is your second in the lecture point about arguments, and advocate the struggle in school undergraduate time, two weeks before planting Chuhuai professor came to our school to lecture, in his lecture now China mentioned lack of school environment, he thought Chinese without battle but the battle of ideas, how do you see the storage of teacher's opinion, what do you think the end is now struggle in school, specifically refers to what? Thank you.

Zhang Mingkai: the battle of ideas is certainly some, this is no problem, I think that school dispute completely failed to form the conclusion I agree, but I think the school dispute can also see some trend, or that there is the formation of great potential, but the debates between what is sent and what school debate must be with the development of the society, the development of criminal law, the reason is clear. For example in Japan before is subjectivism and objectivism struggle, but if now subjectivism, seldom mentioned, not to say that no one myself, also advocates subjectivism, but most people are in favour of objectivism, but now it is objectivism internal behavior value theory and the result of no value the battle. But in our country, firstly, subjectivism and objectivism in the two school debate has not fully developed, in a certain sense, I may be a little act with undue haste, that is to say in the debate between objectivism and subjectivism has not fully developed before, internal real we objectivism already the priceless value theory and behavior results no value on the controversy, so many people to conduct without value as if understood as a subjective theory, in fact is not such, if the behavior value on how much the tendency of subjectivism is possible, but even two yuan act without value theory should generally. Speak or belong to the objectivism internal with the result of no value as opposed to a position. It is because we do not have to struggle in school now, so I advocate, a theory must not be with the status quo as like as two peas, a description of the status quo of the theory is of no significance, to play one of the most typical analogy, if there are people to write articles, say how we apply the death penalty. As now the application of the death penalty, a lot of reasons, as it is the application of the death penalty, there is no point. Which view useful? First, the abolition of tomorrow, or as soon as possible; second kinds of views, but also kill more, kill the more the better. These two views can be useful, useful useless not from the right and wrong in terms of theory, more or less in some way to go to practice in front of the point, when you see a trend for a practice should be what kind of time, the theory must be a little earlier ahead, of course, on some occasions. In the legal sense, may also, in foreign countries also have practice walking in front, the theory behind to conclude such examples, but this theory has not said no significance, it is at least the judicial judgment as to the reasonable conclusion sentence, but you didn't speak clearly place, there is no place theory according to the, it can make it clear. The front and the guidance in the theory of practice, I think that these two theories are very role.

Student: teacher hello! I want to ask you a question, how do you think of the southwest region of the judicial system that two yuan? Especially in the field of criminal law, many in the southwest minority areas is a deliberately hurt, especially the kind of injury is that harmonic forms to settle a lawsuit, we study pilot class students, going back to the local procuratorate to work two years later, after we how to face this problem, how do you think of, thank you!

Zhang Mingkai: feel shy, I have a lot of places I don't understand the minority, year in and German scholar communication, because want and German scholar to introduce, I look a little a bit in this aspect of the book, I think so, that is to say we had the "criminal law" has been fully take care of itself to this point, so that the people's congresses of ethnic minority autonomous areas at the provincial level is regulation can make a lot of alternative or supplementary, because if you don't make the adaptive or supplementary provisions, you very difficult to apply our "criminal law" in many cases in minority areas, but I asked about our research on customary law of ethnic minority areas of some professors, it almost impossible to find minority provincial these authorities formulate adaptive or supplementary provisions, but in practice, if you don't make it impossible to continue. So I think that should appeal to some minority local provincial authorities to formulate adaptive or supplementary provisions, otherwise, you are the place that meet the minority habits can do that in our legal practice, there is no Ren He Genju, provincial authority I can't say which place they are lazy or what sort of, but, as I know, there are a lot of this formulation is not made, I can only say that the problems in this, if you really want to tell me what to do, I can only say you as far as possible both to, because there is no specific case I'm not good, how specific to position.

Student: teacher Hello, first of all thank you today brings this wonderful lectures, I am from the school of law in two an undergraduate student, I may issue will be very childish, but please forgive me. I want to have a first class asked the case you want to ask you, how to analysis according to the debt, debt from what, by making a distinction between the kidnapping and extortion type on behalf type illegal detention of two charges, through analysis of the debt; second issues will be in the common crime, the principal is the crime of kidnapping and accessory only constitutes the crime of illegal detention?

Zhang Mingkai: I just answered the judicial interpretation of how to understand, I did not answer, and in my opinion it is just to have no judgment debt I think is not appropriate, because this crime, the crime of kidnapping or the crime of illegal detention, or a criminal violation of civil rights, so when I in my textbook said, not just to see if there is no debt. Legal debt certainly no problem, as long as the legitimate debt is sure to apply238The crime of illegal detention, but illegal debt, such as some people in order to kidnap others find excuses to set some kind of debt, such as cheat people and their gambling, is actually deceiving, said people owe their300Million, then their kidnapping, similar to this,I feel or judgment of victimization freedom involvement, and then to judge is the establishment of the crime of illegal detention or the establishment of kidnapping.

Relations between the two crimes are not in opposition to each other, the establishment of the crime of kidnapping basically have set up the crime of illegal detention, but the judicial interpretation of criminal law have a certain time limit of the crime of illegal detention, abroad is not to have, but the use of violence. There is no time limit. The two crimes do not understand the relationship between opposite,In the common crime, crime may not the same,Not only may principal is kidnapping accessory is illegal detention, which is entirely possible, but may also have, joint crime not to charge the same as the premise, is entirely possible.

Student: teacher, I want to ask a case, about the difference between the crime of kidnapping and other crimes, the victim is behavior person after the kidnapping extortion money, the victim's family members did not give him the money, the knife to kill the victim perpetrator, victim said don't kill me, I give you10Million dollars put me. The behavior of the victim put, get it10Million dollars is kidnapped income or other proceeds of crime?

Zhang Mingkai: you mean people said you don't kill me and then I give you10Million dollars?

Classmate: Yes, she said I gave you10Million dollars don't kill me, people stopped killing.

Zhang Mingkai: this case and that such behavior to the implementation of rape victims, victims say I give you tens of thousands of money don't rape behavior, take the money back is one thing. The case in many places have also many, the judicial practice often on the acts of robbery, but I think there is a problem, I also and Japanese scholars discussed a similar case, is just that the case of words, in addition to kidnap case, of course, if you want to say that behind the murder to independent conviction, no matter Is it right? Independent conviction, if is kidnapping murder case, is kidnapping murder the discontinuance of crime, murder is suspended, the suspension is established, however, if no new truth, people proposed on own initiative, I tend not be robbery, but what crime, any law so far I find not to condemn, because the other property crime is not a fit, or theft, fraud or blackmail and impose exactions on, or no one is consistent, so far I to this kind of case is concluded to obtain property behavior not conviction.

Classmate: whether can be the crime of kidnapping, because the kidnapping is combination of crime

Zhang Mingkai: the kidnapping crime had been scheduled before the.

Students: the back is a murderous act of suspension, the crime of kidnapping is not including homicide.

Zhang Mingkai: now comes to you is a two crime or a crime, two crime, kidnapping is accomplished in front of behind the murder is a suspension of a crime; it is suitable for kidnapping murder this stop, but because you have been kidnapped, the damage has already been done, have caused damage to the right of the person, you can only be mitigated punishment, is more than ten years to life imprisonment.

Students: the teacher you prefer the kidnapping?

Zhang Mingkai: kidnapped in question, this is the crime of kidnapping is no problem ah, you just say that10Million pieces of how set. The man in the Yellow clothes.

Student: I am a big three student, we have to sharpen one's knife ready to judicial examination recently, Mr. Han Youyi often mentions from the criminal subject can judge this title is you still miss Zhou Guangquan. I would like to ask another question is criminal law in a case of private prosecution, do you think such a case it is a tumor is not criminal law, Is it right? A certain extent reduce the prosecutor's responsibility, is not as prosecutor, you think this might be destroyed it, private prosecution cases exist?

Zhang Mingkai: me first say behind a front, say, hey this judicial examination did not need to say.

Classmate.

Zhang Mingkai: This is a case of private prosecution and handle cases I think is not the same,That is the limit. The prosecution right,Because the case if you sue would be more adverse to the victim. This is like our old Chinese stipulated in the criminal law of the crime of rape is a case of private prosecution, insult sin is a case of private prosecution, it is based on such a reason, but the addition of privacy, also has mild nature, may also involve interpersonal relationship, is two people or the relationship between the two. That sin is not be abolished, this is one of my views.

Second views,I think that crime is not equal to the crime of private prosecution, private prosecution cases in a way not to limit the prosecution the right of prosecution, it is to reduce the pressure, it is to reduce the pressure on them, it is what it is.If the legally, I may be influenced by the Japanese criminal law theory, I do not advocate a private prosecution, even if that crime, I also advocate the public prosecution, the victim only when the need to tell, the victim does not tell you not to private prosecution. Don't have much time, I am giving you an example, my deputy attorney general in Beijing during the Xicheng District people's Procuratorate, the victim to take to the bank deposit fifty thousand yuan, five Norte money, fill fifty thousand yuan list, then shout yell to him, he said, "to" a catch, caught forty thousand money to the window, handed to sales list, sales at fifty thousand, put the money Dilai, at only forty thousand, whether it is forty thousand or fifty thousand, is fifty thousand which is only forty thousand, a look back, that table ten thousand No. The victim to the bank that you can put the video out to let me have a look who took the bank said, our video only to the public security bureau not personal machine. The victim was reported, the public security organ a tune out of view, a person away, will find that person, that person does not admit, the public security organ said "you don't admit, I put the video for you to have a look", he admits. In my view, this is a theft, because even say forget, but in time so close, should be the victim in the control, but they say "Oh, that we used to have a fixed occupation, forgotten things fixed occupation". The Public Security Bureau of the case to the procuratorate, the procuratorate to say this is that is a case of private prosecution, we don't accept, you go back, the public security bureau does not withdraw, procuratorate said the case materials to be the victim, let the private prosecution, police say I do case why to victims, don't agree. The procuratorate said OK to the court, the court refused to accept the case of private prosecution: how can you sue when cases of public prosecution, not to accept the. Ask me how to do, I say you charged with theft, he said that they must be changed to the crime of embezzlement, then you let him do what I say, so why not on the list, is not so absolute.

Judicial examination may see this question is who, because of this topic and that many or, as you write the article, you'll see who may be out of the question. The judicial examination was very difficult, too simple, too difficult to do, I test can not be completely according to my point of view, in fact you can see how I say is out of the question, you find that answer is not my that and that is not the same. My question is to find the answer and I agree, that I have no objection, the judicial interpretation is the same, or judicial interpretation did not explain. If for example the judicial interpretation picked up credit card atATMTake money machine on the credit card fraud, I don't approve of. So if my questions, I don't think this question, because this problem is more harm to students of Tsinghua, he a theft, but others said the judicial interpretation of credit card fraud. I set up the victim or the Tsinghua University students, they always think the answer is completely according to my will, in fact there is a judicial interpretation, the judicial interpretations. I was against if says the opinion, I don't like. That's all I got to say about that.

Student: teacher Hello, I might mention a little sharp, inappropriate, please forgive me. In ancient China there is a saying"On the road to difficult"Ming Dynasty, Wang Yangming also offered to "the unity of knowledge and action", the General Secretary Xi Jinping recently put empty talks stem force prosperous, so I would like to ask Professor Zhang, you just said to criticize the argument can be regarded as a kind of talk is a scholar wrong performance, then we as a learning method of the students, is should do a few things, a contribution to the construction of rule of law Chinese himself, not all day just sit and prattle about the general principle indulge in verbiage, thank you.

Zhang Mingkai: can you tell me what are you doing?

Student: I am a student in application of law school.

Zhang Mingkai: Oh, no wonder. First of all I want to say is, no country's criminal law does not argue, foreign criminal law do not think he is not arguing, Germany and Japan, you do not think that only three class, two class, four class, three class, two class more different is, you don't want to have no dispute in the three class, more disputes is. The views of scholars, I often say the words, is the supermarket goods, judges do this case, think that I want to obtain a most appropriate conclusions, which do you use a point you to that, and it's free, the supermarket selling water when not can only sell a mineral water, that we all have a kind of mineral water, not possible. Sell it not only sell a cup, to a variety of. Do not think that there is no dispute as well, according to a point of view we have in this you look good, and if that view is wrong, means we all have been wrong for a long time. There is controversy when wrong is just a few of the wrong, wrong can also go to the correct time, how can talk?

Student: teacher Hello, just now you said this in the traditional four elements of the case nine five per cent of cases with the traditional four elements is not a problem, the other five percent with the traditional four elements is defective, then I want to ask is the defect in the five percent cases of manifest in where?

Zhang Mingkai: This is not what I said, this is a former University of political science and criminal law professor said. He said the four elements can solve ninety-five percent cases, and five per cent mean the proportion has very little, system four elements do not need to change the five percent we are accustomed to. This is not what I said, I have no time to give you a lot of examples, there is a lot we can't explain four elements. I am here2008In the "modern law" issued an article called "of the illegal and the responsibility as the backbone to construct the system of criminal theory", is2009Years. The article will give a lot of examples, is the four elements can't explain. Let me give you one example now, a15Old people should find a burglary17Old people,17Old man gave him the watch.15Old man stole twenty thousand dollars out of gave him five thousand, to17Old people. According to the current academic theory, do not have legal17Old man is guilty, in accordance with the three class, no problem at all, but very well. I can only give you an example of this, so you can't ask me to name any five percent. I'll highlight what I said earlier, the five percent is the most important, the ninety-five percent no system can do. Since you say the feudal society, feudal society what criminal law system, so you can speak feudal society do are unjust? Right, that you say those are for you, isn't it. So important is not the system, the system is a tool, a case of controversial when four elements to analyze it, to analyze it with three class, two class to analyze it, if the analysis conclusions are the same that you feel at ease and justified, this is not a big problem, once the analysis conclusion of different so, here is a problem. You have a tool, not a bad thing, don't reject it. Because most rich people, buy a car buy aircraft also buy boats, right? Some people say to buy why so much, have a go. The tool is a good thing not a bad thing.

Student: teacher Hello, I want to ask you a question about human rights and the issue of the death penalty. But if a country he has people's life rights through the people's alienation in the words, I think the citizens of any country is not delivered himself of the right to life. That a state has sentenced to death penalty if the right people, I would like to ask if the country is a rule of law country, she has the death penalty legitimacy basis in where, all her benefit in where, where she is from. Thank you, Mr. Zhang, I also should be law students.

Zhang Mingkai: I think that you'd better not ask me, because of what, I advocated the abolition of the death penalty is tomorrow, I'm not long ago in the "people's Court Daily" on an article is not heavy, I gave a lot of examples is to illustrate the death penalty is of no use. So I advocate to abolish it obviously I think it has not a good enough reason, then you don't embarrass me let me speak reason.

Student: teacher, I would like to ask three stratum theory and we are now the four elements is what kind of relationship, what's the difference between them?

Zhang Mingkai: I simply said that, for the three class, the constituent elements of a compliance and illegal fact about a problem: illegal. Elements are illegal, so only two class three class essence.Our four elements is not distinct illegality and responsibility, three class illegal does not necessarily have the responsibility, there is no responsibility of the illegal, such as killing the mental patient is illegal but he has no responsibility. We have four elements, illegal is the unity of the subjective and the objective, a behavior is either legal or complete lack of objective illegal crime, evaluation, and in this way, we did not consider the four elements which element exactly what role, such as age, body inside the actual ability of responsibility is that the man is worth condemning, special identity, itself is the behavior that violate not illegal, but we don't consider it into a block, so it leads us now to a psychopath kills time can not defense, some people say that he is the mental patient can't defend, do not know can defense; some say when you can run not self-defense, when you can't run on defense, so I said you knew he was mentally ill but when you can't run, how to do? Don't know. There are a lot of difference between the two.

Student: teacher Hello, I am very agree with your view academic debate, but as a face the exam, it is unity, I was told that other views such as three class said, my heart will can't help to reject it. So I hear you tell felt very painful, I very want to accept this view, I think this view is correct, but when I heard the other views, my heart will be can't help to conflict, I think Mr. Zhang to help us think, as a student in the face of the test, we should be how to do?

Zhang Mingkai: judicial examination may not involve three class four elements, may not have this problem, can not be such a problem. It is impossible to appear three class and four elements of a are not identical, even from the conclusion, as used in the three stratum theory, so this problem must be viewed by the way you feel that the conclusion is what kind of. As you said I said you think I said is reasonable, other teachers say you think what he said is reasonable, it is need you to judge for yourself, you should read more books, you will have more ideas, and then you can go to the judge who is more reasonable, you pick who.

Student: teacher Hello, fellows were prepared for this year the judicial examination, but I am this year is just beginning of the criminal law, I particularly want to please the teacher give us these criminal beginners some suggestions.

Zhang Mingkai: I think the criminal law study really hard, but you don't feel too embarrassed. I think learning criminal law according to my idea, the teacher designated reference book references you must read,You should not read their own identity point of view, you cannot read oneself is easy to read books and articles, he does not agree with the books and articles to read, very difficult to read books and articles you want to read.I saw some people say, ah the book that I really like to read, why do I say, he always speak my mind I read6Times. I said you shouldn't read this book, you read it what harvest, your mind you have, have you read what it do? And the more you read you don't approve of books you may be more. The first is the extensive reading, second I think is to be familiar with the law, the law is not familiar with the science of criminal law is difficult, third I think you have to collect a large number of cases, but also to imagine a large number of cases, you want to observe the social life, even if the case is not the criminal case, you can also slightly forward to think, step into the criminal case, you think about it. Another is to keep the teachers and classmates, put his idea to the students to see and hear the students how to judge you, I feel you repeated this training you will learn good.

Student: teacher, I would like to ask you to compare the statutory and specific statutory compliance with said, is in the judicial test, insist on you in the fight against wrong it is legal according doctrine, but listen to other teachers said is the specific statutory compliance with said, I think, the specific statutory compliance with said more reasonable, in general, if a person committed a crime, the other harmful results, we think the behavior person to his pursuit or desired results is intentional, the other crime is the result of negligence, do you support that is to say, would like to ask you to compare the statutory compliance with said, specific statutory compliance with said the similarities and differences between the two theories, another in the strong position in the China which theory, a theory which is in a weak position?

Zhang Mingkai:You let me now tell which theory advantage, that I may not so short a time to tell, I wrote an article. In Germany the coincidence is strong, that is to say, in Japan is strong, but the fact error processing in terms of words, I think Japan has more advantages than the German doctrine theory. Germany's theory does not distinguish between concrete mistake of fact and abstract mistake of fact, so sometimes the case they didn't Japan a good deal, Japan is the distinction between the two. In China, actually the earliest advocates specific meet said, but after a long period of time that is to say, can say is that, only recently have argued that specific meet said. In my opinion, specific meet said more attention is the heart's content, that is to say, it pays more attention to normative evaluation, so I think that is to say, should be better. You'll see what theory that counseling book of judicial examination, counseling book statutory compliance with said that the examination according to the statutory coincidence.

Student: teacher, I would like to ask in a subjective element should be in, in the liability is also the subjective elements, the two have what different place, what is the difference?

Zhang Mingkai: This is not all the people think that the elements of subjective elements. Conduct without value theory that the intention is the elements, but conduct without value usually don't think it is the responsibility of the elements that he deliberately, intentionally is illegal, but there are a few people think deliberately deliberately both elements of intent also have the responsibility, then a few advocates both elements of intent and responsible deliberately in the very great degree is to explain the problem of imaginary defense. Results no value theory that intentional, negligence is the responsibility of the problem, he will not take the subjective elements in the form of intent should go inside elements, as long as the clear the relation between them is not very difficult, in fact it is not difficult to distinguish.

Student: teacher, may I ask one last question? We say that legal formalism is not good, we say that the law is good, we say that the substantive theory of law is not good, the substantive rule of law is good. But basically we have been is the form of the rule of law, is the process of legal formalism of continuous progress, I want to know the formal rule of law or rule of law and legal formalism, substantivism its difference in where, how do we get rid of the form of the rule of law, rule of law to pursue, but do not fall into the hands of legal formalism and substantive theory of mire?

Zhang Mingkai: you this is the last question, but is the need to spend most of the time to answer. Strictly speaking, first of all depends on how you go to understand the legal formalism, formal rule of such a concept, the form and essence of the corresponding. Sometimes the use of formal rationality includes concept, in fact the formal rationality of this concept includes the substantial rationality in it, many of us take the words too literally said he only form, does not contain the internal rationality, you said in the field of criminal law, the legal doctrine about speaking form form of the rule of law is the statutory range, this no problem. So that is the unity of form and essence. The essence is in the form of unity within the framework of the. Of course you may ask me why you claim interpretation on substance, I argue that the essence of the interpretation theory is under the principle of legality, I advocate is to see many people take the words too literally explanation criminal law interpretation on substance, such as foreign associate professor at Nanjing University's case, that some of our professor said that no way, the law of group licentiousness3More people, so he is assembled licentious actives crime, this is advocate the interpretation on form Professor, I can't say yes, essence of this crime is to protect what, I am opposed to conviction, I and one of the most fundamental reason, adultery is not convicted, because is against the spouse will mate, now how can you have agreed to the conviction?My most basic theory, I do not advocate the conviction, I violated the law? This does not violate, I can do further explanation on the principle of legally prescribed punishment, when necessary, be restricted to explain, so there must be a complete statement, is about to substantive interpretation in the form of range. So don't look at me, I am that violates the crime punishment legal as long as the essence can be fixed, I can not be so ah, that what crimes?I can't be confused to this extent, nowadays this claim violates the crime punishment legal principle. As for the specific case of view, an interpretation of the provisions Is it right?, exactly in line with the principle of legality, is expanding interpretation or analogical interpretation, that is the specific problem case, cannot say the case may the teacher stands guilty, he would be in violation of the principles of legality, Zhang's claims of innocence is in line with the principle of legality the. Well, all of us to all behavior claims of innocence was in line with the principle of legality, that we all adhere to the principle of legality, what punishment, Is it right?.