Ten relationships in the study of theory of criminal law(quoted fromHttp://211.64.8.3/xssfxy/Article_Show.asp? ArticleID=365)

Perhaps there are many scholars think, learn from system to content are quite perfect our criminal law. But in fact, China's criminal law is relatively backward, from system to content all need change. One of the reasons behind the criminal law, criminal law research method is flawed. This paper is to overcome the defects of criminal law science research methods to deal with the ten relations published on.
     One interpretation of the criminal law, criminal law and criticism
Criminal law belongs to the norms of science, normative study on criminal law and its application. Therefore, for the criminal law interpretation, has become the focus of the criminal law, criminal law refers to the narrow interpretation of criminal law, namely the criminal law hermeneutics. Of course, interpretation of criminal law should not only to the law philosophy proper guidance, but also good at improving general principles from the interpretation of the conclusion, and these all cannot do without the interpretation of the criminal law. None of the interpretation of criminal law, there is no criminal law.
However, the basic tendency of the criminal law of our country is critical to the interpretation of criminal law and criminal law, criminal legislation, confused. Prominently, previously failed to make a proper interpretation of criminal law norms, defect took criminal law, and then proposed amendments to the criminal law suggestion; master's thesis, dissertation, generally is the first specification made part of interpretation of criminal law, and then put forward the suggestion to perfect the criminal law; many papers also makes it difficult to distinguish the what is the explanation of conclusion (view interpretation) or legislative proposals (Legislative).
The study of criminal law in criminal law not only focus of criticism, from the research direction and goal of criminal law, but there are many improper. First of all, the criminal law practice of criticism itself, is not conducive to the authority of the criminal law. Secondly, even if based on the criticism of criminal law, legislative proposals put forward good, also can not solve practical problems in judicial practice. For example, the criminal law has not stipulated the unit can become the subject of crime of loan fraud, loan fraud unit to implement the existence in reality. If only criticizes the article 193rd of the criminal law, and suggests that only stipulated the unit as the subject of the crime of fraud of the loan, still can not solve some units in the implementation of loan fraud. Moreover, the high cost of amendment to the criminal law, criminal law interpretation is far less. Finally, the criminal law is not conducive to improving the critical interpretation ability and level. In my opinion, our criminal law is relatively backward, one of the reasons is the interpreter to criticize the criminal law. People can not get satisfactory result in the expression of criminal law text, and not through the various interpretation method to seek a satisfactory conclusion, but by the criminal law amendment to the criminal law, critical suggestions to complete their academic tasks. As in the general criminal terms lost, it can be used to explain the proper conclusion limit method, people can not be limited to explain, is proposed to amend the criminal law. For example, the criminal law fiftieth stipulation: "sentenced to death with a suspension of execution, the execution period, if not intentional crime, after the expiration of two years, to life imprisonment; if there are major meritorious service after the expiration of two years, reduced to fifteen to twenty years in prison; if the intentional crime, verified, approved by the Supreme People's court, execution." From the literal meaning. Here the "intentional crimes" refers to all the crime seemed hostile, but if so, is not conducive to reducing the execution system of death sentence with a reprieve, also do not accord with the spirit of. So, people think the criminal law fiftieth stipulation "crime" is too broad, should modify. In fact, if the history of interpretation and restrictive interpretation according to the nature of the death sentence with a reprieve system, we should draw the following conclusion: "the provisions of the criminal law of reprieve is because the crime also has hope, only resist reformation in a harsh sentence criminal execution is consistent with the system of death sentence with a reprieve spirit, therefore, article fiftieth of the criminal law of the intentional crime '' is that criminal resists reformation aggravated crime." Therefore, the interpreter is entirely possible the direction toward the ideal interpretation. In fact, the interpretation of the wisdom, in which not only comply with the principle of legality, not beyond the words of criminal law may have meaning, and explain the conclusion implementation of justice, judicial demand for. If only criticizes the criminal law without the interpretation of criminal law, will not improve the interpretation ability and level.
Many important reasons used to critique the criminal law. Contact the criminal law method, on the one hand, is because the interpreter not in good faith interpretation of criminal law, assuming no made in favor of legislators. Criminal law is justice and possible future life fact should be relative, thus forming the norm of criminal law. Aside from the technical details, the legislators could not set up the norm of criminal law is unreasonable, inappropriate. Therefore, the interpreter to explain the criminal law in good faith, but not as a critic, always with a critical eye towards criminal law. On the other hand, because of the lack of ability to explain the interpreter, not * * * * to the interpretation of criminal law interpretation, resulting in defects, so had to criticize the criminal law. In fact, except figures and it is difficult to explain language, other legal language has a lot of room for interpretation. Criminal law defect called, was largely interpreter explained out, rather than criminal law itself exists. A provision, A scholars because no explanation conclusion properly, will believe that criminal law has flaws; while B scholars put forward to explain conclusion properly, will believe that criminal law has no defect. This shows, not everyone thinks A provisions exist defects. Furthermore, even if people can't draw conclusions properly, can't hurry that "criminal law not properly", but should be concluded in repeated studies.
It is not difficult to see that the practice of criminal law and criminal law, critical hermeneutics behind reciprocal causation, and therefore easy to form a vicious spiral. Behind the Criminal Law Hermeneutics led to criticism; criticism of criminal law and the Criminal Law Hermeneutics behind the lead. Only focusing on criminal law interpretation of criminal law, and the interpretation is consistent with the idea of justice and for the judicial needs of the conclusion, to the prosperity of the science of criminal law.
People used to criticize the criminal law, may also be due to not deal well with the relationship between the interpretation of criminal law and criminal legislation, it doesn't matter dealt with interpretation of criminal law and criminal law. In fact, not only criticism of criminal law, is beneficial to the perfection of legislation, interpretation of criminal law is also conducive to the improvement of the criminal law. In other words, proper interpretation of the criminal law may also make criminal amendment. For example, "Japan Fukuoka County youth protection bred girl regulations" article tenth first prohibitions and under the age of 18 "bang" (the legal consequences for punishment). "The literal meaning of promiscuous behavior" is not clear, many people suggest the Japanese Supreme Court declared the act unconstitutional. However, the Japanese Supreme Court judges that the temple land, restrictions on the strip, can overcome the defects which are too broad and not clear, he then pointed out that: "not to declare the law unconstitutional, with the conditions of the application of law interpretation can be controlled, then, can also promote the amendment of the law."
In civil law countries, legislation and judicial experience show, statutory improvement largely depends on the interpretation of criminal law. For example, Japan penal code 108th provisions enacted in 1907: "burning down now for human habitation or existing buildings, people, train, tram, ships or mine, the death penalty, no period or more than five years of servitude." Before 1995, the 109th have been stipulated: "set fire to the non for human habitation or unmanned, buildings, ships or mine, H years in servitude." Obviously, with 108th, 109th the use of the word "or" obviously inappropriate, because the non habitable buildings may be present, therefore, in accordance with Article 108th; now no one inside buildings may present for human habitation, and also in accordance with Article 108th; only the non burned for human habitation and now no one inside buildings, ships or mine, do not meet the 108th and 109th shall apply. Therefore, the Japanese interpreter has 109th "or" interpreted as "and" or "and". This is a correction, this interpretation later Japanese Congress adopted in 1995 by Japan in 1995, which in article 109th of the criminal law "or" was changed to "and".
China also has explained by promoting legislation phenomenon. For example, the old criminal law and "on the punishment of crimes of embezzlement and bribery of the Supplementary Provisions" are not clearly defined the mediating bribery crime type. Introduced in Japan in the criminal law theory of mediation bribery crime, social life in the required by the criminal law of the mediation bribery case, the Supreme People's court, the Supreme People's Procuratorate November 6, 1989 "on the implementation of 'about the punishment of crimes of embezzlement and bribery Supplementary Provisions' answers to some questions" pointed out: "state personnel not directly use my authority, but the use of his own powers or position convenient conditions formed by other countries, working staff's act, for the benefit of trustees, and I to and from the Qing trustee illegally obtained or accepting property, shall be punished for taking bribes." This interpretation was later incorporated into the new content of article 388th of the criminal law, the mediation bribery has become a type of bribery crime. Through the interpretation of criminal law is similar to the situation is not rare.
Generally speaking, the path for the perfection of criminal law, legislative interpretation according to law, justice and written expression, and contact the social reality of legal interpretation; in many cases, in order to realize social justice, the interpreter has to make its literal meaning of different interpretations of the law (the interpretation of the criminal law should comply with the legal principle of crime and punishment principle); after a period of time, the legislature will be adopted to explain the views of the revised law, words, more can realize justice in words; then, explain them according to justice and written expression, contact the social reality of legal interpretation to repeat the above process. This process move in circles, so that the statute law more perfect, the judicial continued to pursue and realize justice. So, don't think, only the critical method to help improve the penal code, in fact, interpretation of criminal law itself also even more conducive to improving penal code. The theory of criminal law should be focused on the interpretation of criminal law, criminal law and not criticism.
     Two, the theory of criminal law and judicial practice
The relationship between practice and theory of criminal law and criminal justice is close, but the two will exist inconsistencies. Theorists lamented the lack of theoretical guidance or not in judicial practice in criminal law theory as a guide, the practice of criminal law theory from the judicial practice of criticism. It should be that, there are two kinds of phenomena.
Criminal law is recognized as the subject of practical. Norms of criminal law interpretation, can be applied to judicial practice; the problems in the judicial practice (such as difficult cases), must study the theory of criminal law. Although it can be said, criminal law is a science of legal text, but the text inquiry is to solve real life fact in the dispute, in order to make decisions on specific cases. "The interpretation of laws in these specifications (by induction) applicable to the specific cases in the process. Therefore, a characteristic way of legal thinking is, there is close relation between the practice of the application of language and law."
However, China's criminal law on the judicial practice, attention is not satisfactory. On one hand, put forward many viewpoints, and do not consider the possibility of using in judicial practice. For example, according to the relevant provisions of the marriage law, the marriage of fact not recognized. Linked to this is, criminal law can recognize that marriage? The criminal law should be punished on the so-called "marital rape"? In the vast rural areas, not for marriage registration, only held a ceremony after living together, children and be deeply attached to each other's real husband and wife too many to count, even is very common. If you deny the fact marriage concept in the criminal law, the husband of his wife is a little careless, it may be a marital rape; admit this fact marriage even in the criminal law, but if the current must be called rape within marriage, the husband of wife, is also very easy to constitute the crime of rape. It is not difficult to see that, denying the fact marriage concept in criminal law, as well as sure rape within marriage view, are difficult or even impossible to use in judicial practice.
On the other hand, study on criminal law theory researchers used to think, how to deal with specific cases, judges, prosecutors task, not the task of the scholar. Some simply does not apply to judicial practice works, can be a lot of people enjoy. And for many specific cases, often only some of the judges, prosecutors in the "people's court", "procuratorial daily" published views, but no scholar's discussion; even when the newspaper invited scholars expressed their views, other scholars also do not participate in the discussion. The judicial organs have been published case, scholars have few comments. But, often encounter the problems in the judicial practice, the criminal law theory is often No one shows any interest in.
The above phenomena are not only the objective reason, also has the subjective reason. In western countries, the case has accumulated a, two hundred years, the scholars can read all kinds of cases, one in two hundred years. Criminal law scholars can easily understand the various details of a case, and readily available judges on the case verdict and judgment reason. The criminal law scholars can summarize the case, extracted from the theory of criminal law. Honest so-called "from the practice, to practice". For example, the theory of anticipated possibility, is the German scholars judge on addiction Ma case based development, perfect theory; the objective imputation theory, is also the German scholars through the concrete case of induction and the formation of the theory. The Japanese criminal law theory of the new negligence theory, also stems from a specific case. Not only that, principle, principle of precedent established often have a significant impact on the theory of criminal law. For example, the Japanese Supreme Court in 1957 set up the "Chatellet case" in the "vain aphrodisiac, harm to the ordinary people in the normal sense of shame, in violation of good 'morality' standard, still be regarded as golden laws and precious rules", not only by the lower courts to follow, and widely cited and adoption of criminal law theory. However, many can make criminal theory development in the case of China basically sank into the sea, the scholars also difficult to understand the controversial cases, more difficult to see the judgment; even if the verdict is quite reasonable, but the lack of judgment reason, it is difficult to provide clues to the theory of criminal law scholars and judges; communication is not smooth. This may be the objective reasons of our country criminal law theory and judicial practice is not close. Thankfully, because of the media developed, scholars to understand the judicial practice more and more convenient, more and more simple to obtain judicial precedent. The scholars should make full use of various channels, understand the judicial practice. The judicial personnel shall also provide convenient conditions for the research of scholars. Scholars and judges, prosecutors, legal interpretation and application of mutual communication, a good way is the development of theory of criminal law.
The theoretical circle of criminal law should also correct the deviation of understanding, don't think too much about the problems in the judicial practice, it reduces the level of criminal law theory, do not think that the case can not enter the formal theories of criminal law. In fact, whether in the countries of Anglo American law system, or in the countries of continental law system, criminal textbooks and works are full of all kinds of cases. Moreover, the science of criminal law is not abstract knowledge; even the most abstract philosophy, will contact the specific issues. So, the criminal law scholars should pay close attention to the judicial practice, the criminal law theory for the judicial practice.
     Three, theoretical explanation and interpretation
And has the right to explain (legislative interpretation, judicial interpretation of criminal law theory), which do not have the force of law theory explanation of criminal law interpretation. Therefore, learning and handle a case is not exactly the same. Because has the power to interpret the law, judges, prosecutors have to comply with the power to interpret the handling of cases. However, academic research, not superstition has the right to explain. The power to interpret the reason has the force of law, but because the subject of interpretation is the legislature and the highest judicial authority, rather than because the interpretation conclusion must be true. On the contrary, the doctrinal interpretation does not have the force of law, but because the subject of interpretation for the theory researchers, not because of their interpretation errors. In fact, the doctrinal interpretation more guiding judicial practice.
Theoretical interpretation in criminal law, should not be no need to frequently asked the legislature to make legislative interpretation, judicial interpretation request the judicial organ to make. On the one hand, the doctrinal interpretation to provide theoretical basis for legislative interpretation, judicial interpretation; not required authorities to explain, and will have the right to explain the contents into his works. On the other hand, the doctrinal interpretation of their own is not through the study of interpretation, legislative interpretation, judicial interpretation is always required to draw conclusions practices, may not only lead to legislative interpretation and judicial interpretation is improper, cause the judicature to be suitable the improper, and lead to Criminal Law Hermeneutics behind. Just imagine, if the criminal law scholars once encountered problems requires the highest judicial authority the legislature, as has the right to explain, what the scholars also research? If the criminal law scholars express simple problems in work, complex problems are left to the legislature and the highest judicial interpretation of criminal law, how to develop?
However, we often encounter such a phenomenon, when science explain encounter a difficult problems or, will be in the works: "this problem is the legislative interpretation"; "this problem of judicial interpretation". In the author's opinion, theoretical circles have the problem of "hand", is one of the important reasons for China to further development of criminal law.
This phenomenon, probably because the interpreter to subjective interpretation, the ultimate goal is to reveal that interpretation of the original intention of legislation, and the legislative intent of legislators know only. In fact, the interpretation of criminal law is to reveal the objective meaning of criminal target. The original intention of legislation or does not exist, or even if there is not necessarily realistic appropriateness (the legislative intent of defects is not uncommon); the legislature by many representatives, Fellow Deputies for the same criminal law understanding cannot be identical; moreover, the legislative intent of existence, nor does it mean that can only be explained by lawmakers, because interpretation more difficult than others their own interpretation. In fact, often those without evidence to demonstrate the views of the interpreter, it claimed that his explanation is the original intention of legislation. However, the legislative intent of the interpreter from why and come? If the source in the criminal law, the legislative background, describe the objective need and so on, it does not belong to the so-called legislative intent. Therefore, take the theory of objective interpretation, not only at proposed legislation to require, it may make the interpreter to find objective meaning of criminal law.
Appear afore-mentioned phenomena, may also be due to explain misunderstanding: that has the power to interpret for analogical interpretation and explanation of expanding, and doctrinal interpretation cannot be analogical interpretation and expanding interpretation. In other words, people demand the right to explain, is because they can not make this interpretation, feel that their interpretation beyond the words of criminal law may have meaning, in violation of the principle of legality, to demand the right to explain. However, the interpretation of criminal law scholars, as long as the conclusion is reasonable, in line with the principle of legality, it can guide the judicial practice, and not any proper academic interpretation must be transformed into the power to interpret. Secondly, the theory can't come to the conclusion, legislative interpretation and judicial interpretation can not be obtained, because of legislative interpretation and judicial interpretation must follow the principle of legality. The legislature may establish legal provisions in the development of criminal law, even if some behavior does not meet the requirements of a clause, can also be punished according to provisions of a clause (such as robbery does not comply with the provisions of the crime of robbery, carrying weapons but still provisions carrying weapons snatch the crime of robbery). However, different legislative interpretation. Interpretation is an interpretation of the provisions of the existing, rather than laws. Therefore, the legislative interpretation might have on the existing provisions can only be interpreted within the meaning of the term, not by analogy to explain, or damage to the possibility of national forecast, violated the national freedom of action. For example, the legislative cannot make "the crime of robbery" interpretation conclusion lethal theft; similarly, the legislature can't make "article 237th of the criminal law 'women' includes men" or "article 237th of the criminal law 'women' is equivalent to 'others'" interpretation (but the legislature can be 237th. "Women" is amended as "others"). Legislative interpretation of criminal law will receive the restriction, the judicial interpretation of criminal law should receive the restriction rules. If so, the doctrinal interpretation is not necessary at the request of legislative interpretation and judicial interpretation. Thirdly, whether expanding interpretation or restrictive interpretation, are interpreted methods allow the principle of legality, but by the general sense of reasonable interpretation conclusion specific interpretation method is not reasonable.
The different interpretation methods must be interpreted according to the demand to determine. Explain the demand from different cases should be applied to different specifications, in the work steps are used in the same code word. Then on the basis of summing up the results of legal interpretation; if you get some different result, it must be in a unified vision to measure and prove a result which is more suitable for.
So, on the one hand, the analogy interpretation is any explanation cannot use; on the other hand, other methods of interpretation are the theoretical explanation and has the right to explain the method of sharing. Therefore, the doctrinal interpretation cannot be assigned to some interpretation method has the power to interpret, another part will explain the method belongs to own.
In fact, many of the requirements of legislative interpretation of content, as long as the doctrinal interpretation can be. The sentence as an example. As mentioned before, the doctrinal can limit interpretation of "intentional crimes". But make a restrictive interpretation, there has been another problem: for a reprieve the reprieve during the implementation of a minor (not that sentence prisoner resists reformation in bad) intentional crime, it should be how to deal with? People are used to suggest modifying the criminal law or legislative interpretation to extend the probation period. In fact, according to the current criminal law, the legislative interpretation does not need, no more need to amend the criminal code. Article fifty-first of the criminal law of the preceding paragraph: "during the period of suspension of execution of death penalty, calculated from the date of the judgment." The prisoner has committed in execution reprieve during intentional crime and was sentenced to a suspended death sentence be punished, decided to implement, naturally extend the probation period. For example, in February 1, 2005, was declared a reprieve, during the test period after a year, committed intentional injury crime (minor). The people's court in February 1, 2006 will be the newly committed the crime of intentional injury and death be punished, decided to implement the death sentence with a reprieve. So, the sentence of probation period shall be determined from the new judgment day (February 1, 2006) from the calculation, the natural extension of the period of suspension of execution of death sentence with a reprieve.
Therefore, even in the absence of legislative interpretation and judicial interpretation, the doctrinal interpretation can also draw a reasonable conclusion. The theory explains facts is a symbol of prosperity and development of the science of criminal law.
     Four, the basic ideas and specific conclusion
"The concept of law as the real justice final and eternal form, the people in the world is neither thorough understanding has not fully realized, however, all human legislation behavior with that idea as the orientation, the magnificent scene law idea never abandoned people." In the economic development of the complex social and human rights of the era of rule of law, can not be directly according to the criminal theory of conviction and sentencing. Because, justice "at any time in different shape and has a very different face", and "the law should be objective, this is the essence of a legal system." If directly according to the idea of criminal law the crime, is bound to damage the stability of criminal law. So, the idea of criminal law must be specific, positive. In the penal code the idea of criminal law specifically, empirical, also need interpretation of criminal law, which makes the concrete conclusion accord with the idea of criminal law. Obviously, the interpretation of the criminal law must be based on criminal law theory, the interpreter should be to realize the idea of criminal law responsibility. According to the concept of criminal law legislative design norm of criminal law, the idea of criminal law has become one of the substantial penal code for creating. The interpretation of criminal law (for) is the reality life fact and norms of criminal law should be relative, so, can not be deviated from the concept of criminal law interpretation of criminal law; otherwise, the norm of criminal law will no longer be justice statement. This is the legislators and citizens are not willing to see the phenomenon. In fact, the development of the written law in the interpretation and application of the full of vigour, repeatedly back to the idea of criminal law claims, be nourished from. If no trace, development of penal code will simply can not understand.
However, in reality and the interpretation of criminal law application process, people often found to deviate from the concept of criminal law interpretation of criminal law of the phenomenon, and find the same interpretation of criminal law idea from his claim or identity that some explanation conclusion phenomenon. This situation led to the idea of criminal law can not be realized, the criminal law itself is insufficiency, caused by the theory of criminal law be. Example a: about constitution of crime elements and the elements of the sequence, in fact, to a large extent depends on the understanding of criminal law nature and function. China's criminal law theory there are many controversies, but because most of the performance as a kind of formal logic, no discussion from the criminal law foundation. We can often see, emphasizing the function of human rights protection, hand advocating contradictory phenomena from subjective to objective crime. Example two: criminal law theory has been that the social harm is the essential feature of a crime, and that social harmfulness behavior constitutes a crime, but it does not determine the specific content of social harmfulness, and many did not harm the social behavior in accordance with the constitution of crime behavior. Example three: there is a heated debate in theory of criminal law in three conditions of attempted crime. However, I'm afraid several opinions, may not understand that they are taken the objective of the attempted offense position or subjective offense standpoint, does not think oneself is to one of the conditions to take the subjective offense standpoint, and on other conditions take the objective of the attempted offense position. Example four: the subordinateness and independence, directly depends on the understanding of the punishment foundations of complicity, complicity punishment according to the direct and objectivism, subjectivism and associated. Our country about the character of instigator, independence and duality argument, consider whether the punishment according to the crime? The criminal law scholars of all kinds of views are aware it is the watershed between objectivism and subjectivism? This is worthy of reflection. Example five: people advocated limiting the death penalty (especially the limitation of death penalty execution), but in the interpretation of article fiftieth of the criminal law, as long as the behavior of intentional crime during the period of suspension of execution of death penalty, if not after two years of probation period, it shall be executed. This is unacceptable. Similar not to guidance of the concept of criminal law interpretation of criminal law practice, will inevitably lead to blindness of the interpretation of criminal law, which leads to the contradiction between the phenomena of the conclusion and the idea of criminal law, the basic position is not consistent. The theory full of contradictions together, can not form a true criminal law system.
Explain the conclusion and the basic idea of the inconsistent phenomenon, has a variety of reasons. For example, the interpreter did not make the idea of criminal law in order to become their own inner real idea; or are not good at using a variety of methods of interpretation, the interpretation accords with the idea of criminal law; or take the matter on its merits to research, without any idea of criminal law and the basic position.
Dealing with law plays a very noble, very gentle for jurists social moral feelings; various value -- his method based on these values -- is justice, freedom, loyalty and trust, will be full of vigour in him. Therefore, the intuition decision really a jurist, namely the origin determined by his legal sense, will be pre
He all sorts of value judgment on the legal system.
The interpretation of criminal law only the idea of criminal law into the thoughts and ideas of his own heart, and even become a kind of intuition, not only make the interpretation of criminal law from the concept of criminal law.
Indeed, because of the legal interpretation is a judgment of value, value orientation of interpreter's always affect his interpretation, in the choice of specific values, the subject must be restricted by their ability and condition as well as the object and environment factors, the price of the same subject value orientation and can't show some flexibility and accidental. However, if the interpreter shown flexibility and contingency, always with their own idea of criminal law, the basic position of conflict, then, is either the conclusion can not be accepted, or as its basic position cannot be accepted. So, the doctrinal interpretation to organize various claims of Chinese and foreign criminal law theory, the specific interpretation and proper concept of criminal law. The relationship between the basic position. More importantly, the doctrinal interpretation are should "know yourself", "know yourself", be diligent to examine their published works and papers, good at cleaning up various views and their own point of view, the idea of criminal law, to reflect on their own basic position; in the specific interpretation do not accord with the criminal law theory proper and basic position, should abandon the interpretation conclusion specific, to draw a conclusion. And vice versa. Therefore, in order to form a rigorous system of criminal law.
     Five, formal interpretation and interpretation
In the research of criminal law, formal interpretation and substantive interpretation may have different meanings in different occasions.
On the crime constitution interpretation, formal interpretation means only according to the law text presentation explaining constitution, not to ask after explaining the forming elements whether the essence of a crime; substantive interpretation means that only will be punished acts Interpretation Act accordingwithconstitutive requirements.
Behavior constitutes said elements as value neutral phenomenon, in line with the Equality Act contains illegal and non illegal behavior, so the interpretation of the Constitution can only form. But in the form of explanation is leading the search for a conviction in the elements outside of the standard, in violation of the principle of legality and the original intention of; in addition, formal explanation will expand the scope of punishment in many cases.
Illegal type that requires elements that violations and threats against the interests of law, and thus to the elements of the explanation of the essence. Criminal law will always be worth behavior type to be punished for elements of the act; the legislators elements within the specified time, the inevitable to meet the elements of the act of substance evaluation. As the German criminal law scholar Roxin said, criminal law rules all command citizens prohibit citizens implemented certain behavior implemented certain behavior or; these Provisions also in violation of the rules are evaluated: they are at least in principle is to blame. When lawmakers stipulated the theft, blackmail and impose exactions on behavior in the penalty regulations, they did not think so: "I described a legal act worthy of note in a paragraph, but I don't want to give my views, I'm not sure I'm the behavior is good or bad; my description only that, these actions are not be of little, it is either legal or illegal." In fact, lawmakers in the thought: "I'm describing these behaviors are social unbearable, I to these behaviors should be condemned; so I will through the elements of the provisions of these acts and punish them." Therefore, the constitutive elements of crime, must be interpreted from the essence, so that the criminal law crime really limited in has serious Rechtsgut infringement behavior.
A proposed explanation of the essence, some people think is in on the behavior of social harmfulness of crime. In fact, the explanation of the essence is the substantive interpretation of criminal law constitution, rather than simply the fact of a case interpretation; if the lack of provisions of constitution, in other words, if the criminal law does not set the elements of a certain behavior, of course could not be interpreted as a crime.
In fact, in the criminal law, there are formal interpretation and substantive interpretation problem. Justice is the basic value of law, legislators target; a specification, if the violation of justice to intolerable levels, it is the "law on the illegal"; a standard, if not to achieve justice for the purpose, it is not the law "". "In the history of thought, the concept of justice is often connect with the natural law." The natural law can be understood as the sum of the various principles of justice. So, making method relies on natural law and survival, law express the natural law has vitality. The legal principle of crime and punishment decided to take the written law, but the text of the statute law may lead to natural law and conflict. In this case, is to take the form of explanation, to give priority to the meaning of the text of the penal code, or take the explanation of the essence, the spirit of nature law priority, is the interpretation of criminal law are always facing the inevitable and must pay attention to the problem.
China's criminal law theory has been focusing on form interpretation. Even in the old criminal law allowed on time, people were restricted to criminal law as a form of explanation, just in the analogy, consider the nature of the facts of the case. For example, the theory of criminal law mostly focus on formal logic reasoning, is used to perform push various conclusion under fixed under. Such as set is the starting point for practice, the behavior is regulated by the criminal law act, therefore, started the implementation of the provisions of the criminal law of the exercise was to. However, this explanation does not provide any substantive standards, resulting in the formation of a "began to kill is the crime of intentional homicide, theft is beginning to" theft of circular explanation, on many occasions to start or too early, or too delayed. Also, the theory of criminal law in the form of indirect principal only Division and the instigator, and not according to the nature of indirect principal offender was established, the scope of indirect principal offender (difference and abettor), leading to the indirect principal offender and abettor distinguish unreasonable. In fact, only through the explanation of the essence of the indirect principal, to reasonably determine the scope. Moreover, many provisions of the criminal law of the first paragraph of 399th "is clearly guilty of intentionally protecting people and that he should not be prosecuted" in the "guilty" forms of interpretation, that only after the court ruling will be known as the "guilty", therefore, the judicial personnel practice favoritism, Xunqing suspects deliberately cover up not to be prosecuted, does not constitute a crime. In fact, "the knowing is the guilty one provision intentionally protecting that he should not be prosecuted" itself shows that, the "guilty" does not refer to the court's "guilty", but the essence of the guilty, that have not been prosecuted but essentially in violation of the criminal law of the crime.
Although the form of explanation is necessary, but deviated from the essence of the criminal law explanation of form, itself may be in violation of the criminal law in words, more difficult to meet the needs of social life. Pound in 1908 in the "Harvard Law Review" published titled "mechanization" in jurisprudence.
The general law jurists misidentification as a special logic of scientific method, they thought the case as long as the existing law as the premise, with the current facts as the minor premise, we can deduce a conclusion of the unchangeable. So the law can be bigger than a grinding Rice noodles machine, as long as the grain from the side not to fill in, the Rice noodles will wear out from the other side. Justice is the driver of the workers, there is no chance. But the law is a deal with the social life science. The social life needs at any time change and expansion, so the major premise is also necessary amendments. The written law and in fact law is different, and we should pay attention to is the fact that the law. Jurisprudence has two kinds, one is specially heavy abstract principle regardless of practical effect, is a focus on law in essence to the social life of contribution. The former is the jurisprudence of mechanization, the latter is the jurisprudence of the former is personnel; illusory, is not practical, the latter is to stand on solid ground, an antidote against the disease; the former is the pseudo science, because it is shoot at random, the latter is the real science, because pay attention to the interests of balance. Deviate from the substantive criminal law is the form of hermeneutics, it is the interpretation of criminal law mechanization.
People are accustomed to the pure form of interpretation, important reason lies in the thought form of interpretation can reveal the essence of criminal law norms. In fact, penal code words sometimes conflict with natural laws.
In solving the conflict between natural law and positive law, should be conducive to the former, because the formulation of the objective significance in conclusion depends upon the nature of the dignity of law, that is to say, first, depending on the spirit of the natural justice of law actively and substantial participation; second, faithful and exact form depends on the make law in the form of possibility and survival mission -- to become the law of nature.
On the one hand, the interpreter must always have a heart of natural law, interpretation of law text to the pursuit of justice, the pursuit of legal truth conscience. May be difficult to explain the definition of what is justice, but must understand what is justice. "The knowledge of justice, or if people are willing to, understand the law of nature, is a necessary foundation of legal interpretation; interpretation is the law itself, also serves on the justice, the various principles of justice in law interpretation." On the other hand, "form, abstract, general, and the concept is completely essential for formation of the law, or the law would have no equal treatment, also there is no justice." However, if the heart does not have a law of nature, the development of criminal law is interpretation, the interpretation of "justice" will be a mechanical computer, "justice", a kind of non - human "justice", rather than the national need real justice.
     Six, literal meaning and real meaning
The literal meaning is not equal to the formal interpretation conclusions, the real meaning is not the same as the essence of the interpretation results. So, even if the deal with relationship between interpretation and substantive interpretation, also requires further specific handle the literal meaning of criminal law and the real meaning of relationship.
As mentioned before, the science of criminal law is a text of science, can use the other words of science; American judges often in law language ambiguity occurs when consulting the dictionary. However, this does not mean that the real meaning of the words of criminal law can be determined according to the literal meaning of the words of criminal law. Because the polysemy of the text, change and edge of fuzzy, decided only according to the provisions of the penal code to explain literal meaning of the text, can not accurately reveal the true meaning of the provisions of the criminal law.
However, the criminal law of our country only according to the literal meaning of criminal law interpretation of the phenomenon is universal, many interpreter used to according to various dictionaries, dictionary words of criminal law, which could not find the true meaning of the criminal law. For example, the theory of criminal law in general in accordance with the literal meaning understanding of article 270th of the criminal law first section of "custody", leading to theft and embezzlement or gaps appear between, or overlap. As everyone knows, theft performance will occupy others in fact property transfer for themselves or the third party's property; embezzlement is that the own possession (including the fact that the possession and law) property transformation for all their belongings. For his possession of the property of others, can not be set up in the crime of theft, but may set up the crime of embezzlement. Out of wrong cognition situation, is in fact occupied property, common embezzlement and theft will form a mutually exclusive relationship, as long as the establishment of larceny behavior, will not set up common encroachment; and vice versa. Therefore, since the theft is only steal others possession of the property, so, correspondingly, the crime of embezzlement in the generation of "custody" will mean "possession" entrusted property of others based on.
Moreover, our country criminal law theory basically according to the literal meaning interpretation of article 270th of the criminal law in second paragraph "forgotten" concept, but also will forget the phase difference and the lost property. In fact, if provided for in the first paragraph 270th of the criminal law is the crime of embezzlement, the provisions of the second paragraph is the appropriation from the possession of others property crime. According to the literal meaning "forgotten" will lead to unfair, unreasonable phenomenon. In fact, the real meaning of "forgotten", "non intention based on others and from the possession of others, by chance (that is not based on principal-agent relationship) by the behavior of unknown property possession or occupancy".
Only according to the literal meaning of interpretation of criminal law codes of practice, leading to the judicial organ according to the literal meaning of the prevalence of sentencing convicted. For example, the provisions of the first paragraph of article 238th of the criminal law: "illegal detention of a person or other unlawful deprivation of personal freedom of others, is less than three years imprisonment, criminal detention, control or deprivation of political rights. Having beaten, insult the plot, he shall be given a heavier punishment." According to the literal meaning of the crime of illegal detention, including insult insult and crime of insulting, including forced insulting women sin, then, in the judicial practice, the illegal detention for compulsory indecency women, was identified as the crime of illegal detention. The conviction and sentencing of incredible.
Indeed, the dictionary, the dictionary is an essential tool for text idealist; according to the "modern Chinese Dictionary" and other books explained the words of criminal law, has made the colloquial language interpretation of criminal law, comply with the principle of legality spirit, is conducive to the protection of national prediction possibility. However, the interpretation of the term, a variety of tool, also is not people make known to every family, otherwise, all kinds of reference books have no value. Second, many books in the interpretation of legal language, fully cited law textbooks on the interpretation of the text, the reference books and textbooks "mutual use", "mutually according to" phenomenon, the tool based on the interpretation actually is by law textbook according to the explanation, this is of no significance. Thirdly, when various books on the same terms explanation is not completely the same, cannot choose to explain the conclusion decisive. For example, a problem America United States v.Reid case is whether the aircraft, which belongs to the vehicle? The defendant Random House Dictionary of English Language quoted definition, argued that the aircraft does not belong to the vehicle; and the definition of 's Law Black quoted Dictionary , claimed that the aircraft belongs to the vehicle. Scholars and judges obviously only in the dictionary explanation, find the appropriate reason, that if the plane belongs to the vehicle's conclusion.
In fact, whether it is for the words of criminal law interpretation, or to the general discourse interpretation according to the literal meaning, can not only draw a conclusion. Professor Eskridge has for example:
"The hotel manager Scalia said to me the employees at dinner: 'you at 2 pm today before the hotel all public ashtray gathered, in my office.' I carefully collected all the ashtray. But I found that there is a wall of a metal ashtray is fixed on the elevator as decoration. Shall I put it down? A pragmatic implementation after rational judgment will think that should not be removed. Because the manager said 'all the ashtray' does not include the ashtray, if remove, will lose the original value." "Executive will not remove the ashtray, because he can feel the purpose and meaning of manager in order.
In turn, by Professor Eskridge's words, a "loyal textulism" will be "a poor performer". So this is also so for the interpretation of criminal law. The interpretation of criminal law is law text should be faithful, but loyal criminal law text, does not mean that the literal meaning of the interpretation of criminal law is the true meaning of the criminal law.
In order to find the true meaning of the criminal law, the interpreter should accurately grasp the purpose of criminal law, interpretation of criminal law, criminal law and language in the standard objective guidance; the interpreter should be under the provisions of the criminal law in the criminal law, criminal law in terms of overall interpretation, to know the interpretation of a provision, in fact is to explain the whole criminal law, apply a provisions, actually applies all the criminal law; interpretation should take into account the various possibilities of literal, literal meaning to understand the defects that may exist, determine which explain the conclusion of most accord with justice, written expression and practice.