As the genius of Zhang Mingkai, if not in the study of criminal law, must be on the way to study the criminal law.

And I, if not Niubi, then I must be on my way to the cow force, running all the way!

                                                                -- "

"To explain the principle of criminal law."

Sequence:Justice, norm and fact

Zhang Mingkai(genius Professor, criminal law at Tsinghua University law school)

 Criminal law is justice and possible future facts should be relative, thus forming the norm of criminal law; criminal justice is the fact of the reality and the norms of criminal law should be relative, thus forming a criminal judgment. As a interpreter,Heart forever when full of justice, eyes have to constantly shuttling back and forth between facts and norms.Therefore, justice, stability and aim to realize the criminal law.

"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." [1] justice is the basic value law, lawmakers goal; as with goodness, justice is the absolute value, with its own basis, rather than from a higher value. A standard, 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 "". "Even if the name is the law, but if the lack of justice, it is not as the value of law, but simply violence." [2] so, only in line with the idea of justice of law, is the real law. In order to make a textual representation of the penal code of justice, criminal legislation must be justice and possible future life fact corresponding. "The idea of law (ought to be) as well as by the general principles of law and its derived (e.g. the copies, shall not be infringed upon any person, shall perform the contract, the golden rule, absolute order, fairness, responsibility principle, the principle of tolerance...... Etc.) and shall be standardized, possible and by the legislators expect life fact (real) must be interactive to analysis and processing, in order to make the two corresponding. That is to say, on one hand the idea of law should be open for real life, it must be real, concrete and positive, in order to facilitate the formation of the concept of; on the other hand the foreseeable fact of life will be carried out in typical construction and form a legal concept oriented." [3] legislators according to the rules of justice design norm of criminal law, rules of justice constitutes one of the substantial development law in order to create. The development of law obtained in application and interpretation of the full of vigour, and back to the demands of justice, be nourished from. If no trace, law development will not understand. [4]

"In the history of thought, the concept of justice is often connect with the natural law." [5] natural law can be understood as a sum of various principles of justice. "Initially, as a theory of natural law theory of jurisprudence, is a relevant law theory. Test the old content in the law should accept the ideal and the modified to make them fit the ideal: if they cannot with the ideal match, then it should be abandoned." [6] if so, setting method relies on natural law and survival, law express the natural law has vitality.

 For the same reason, explain the hearts of those who must always have a natural law, interpretation of law text to the pursuit of justice, the pursuit of legal truth conscience. The interpreter "deal with specific cases, never give up personal feel righteous living voice; the voice is never excluded. Whatever method is how efforts to bring justice to the principle of the system, law can not be lack of justice, on the contrary, only in justice, law became full of vigour." Might be a [7] interpreter defines 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." [8] although the criminal law language errors may occur, even though the law expression may cause ambiguity, but the explanation that "person" must be made in favor of legislators believe [9], lawmakers will not make an unjust law. When the interpreter of law interpretation is not in conformity with the principles of justice, do not attack the criminal law against the idea of justice, but should admit his interpretation itself lead to inconsistent with the idea of justice. When the interpreter of the law difficult to draw a conclusion, do not have to attack the criminal law is not clear, but should reflect on their own whether or not the lack of justice concept clear, specific. Therefore, interpretation and the interpretation of criminal law after criticism of injustice, not using a reasonable method draws the conclusion of justice; and suspected criminal law itself, not doubt explanation ability and explain their conclusion.

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 idea of justice or natural law of crime. Otherwise, "especially in eighteenth Century as natural law shows, into the instability of the law and arbitrary." [10] for justice ", at any time can be in different shape and has [11] very different face", and "the law should be objective, this is the essence of a legal system." [12] so, living justice must be specific, positive. In other words, "the law of nature, is never talk about a complete, whenever and wherever possible (HICEtNunc) can be applied to the system, but only to some principles of justice. However, these principles requires some specific, can be used in some specific life scene. The necessary transformation by the empirical (Positiverung) to complete, empirical put those principles into concrete, feasible law rules." [13] because of this, in order to achieve democracy and respect for human rights (national free) to the crime punishment legal principle of responsibility, requirement to written law crime and punishment (written law).

Criminal law founder Feuerbach urged the legal principle of crime and punishment is one of the important reasons, but also to overcome the instability of the criminal law. German criminal justice in the latter half of the eighteenth Century is very unstable. On the one hand, the influence of natural law thinking enlightenment and Enlightenment periods, have been in theory and legislation manifested; on the other hand, the theory and practice has always been the common law is still popular. "Caroline Na" the criminal code in eighteenth Century as the imperial law still become the basis for ordinary criminal law and natural law, but the enlightenment and the enlightenment that "religious foundation of Caroline Na's Criminal Code" has shocked; the judges in order to avoid the brutal punishment, refuse to apply the law, acting as natural law rationality according to the. So the stability of law by the obvious damage. [14] because of this, Feuerbach argues, the judge should make the text by strict and direct method of restraint; judge's affairs should only lies in the realistic case law text comparison: if the provisions of the text is condemned, will and spirit is no gu and formulation of the law, judgment is to the real case guilty; conversely, if the law text is innocent, you should not guilty. Feuerbach also forbid people to he drafted "Bavaria penal code" to explain, reason is the separation of powers in the rule of reason based on. However, Feuerbach never asked the judge shall in any case is in compliance with the law; in obedience to the law would violate the judges exist only to serve justice, Feuerbach even think, judge disobedience is a sacred obligation. [15] Feuerbach seemingly contradictory views are not contradictory, because law absorption of natural law, natural law in law, natural law and positive law com.

The crime punishment legal principle that send generative grammar theory, is because the text can be fixed legal meaning, can consider repeatedly, can be widely disseminated, to become the only tools of legislative expression of justice. Of course, in all the symbols, characters is one of the most important, the most complex. Almost any terms would be the core meaning to the edge extension, the extension of fuzzy; most terms have multiple meanings; legal work, the use of the text will continue to generate new meaning; and speak always exist. Although the legislature in the development of criminal law, has carried on the science limits, for many language but, "in general, the scientific definition of the word meaning than the popular much narrower, so don't actually much more precise, less real than." [16] so, penal code words are always in doubt. In this case, the interpreter must be written in good faith towards the interpretation of criminal law in the direction of the justice, natural law justice displayed on the penal code. On the one hand, "no one in current law system can only from the self understanding, rather, it must be traced back to the current law before or exceed current method is prior to the existence of the rules -- which also include rules of justice." [17] Law Hermeneutics should take justice concept as a guide, but also reveal the formulation of justice law; not in justice concept as a guide, not to reveal the formulation of justice in the legal hermeneutics, can only be described as a "text of law". Therefore, the interpreter must grasp the lawmakers from the behavior of every hue chosen as criminal penalty essence, the standard of justice, according to the standard of justice that should be treated as a crime behavior is crime, make the same behavior in the criminal law has the same or at least similar processing. On the other hand, not to pursue the "justice from criminal terms, law text". The object of law interpretation is the law, legal language is completely out of speculation rather than explain. Criminal law through the text to regulate people (including people and the judiciary) behavior, people through the text to grasp the meaning of the criminal law. If from the words of criminal law in pursuit of the so-called "justice", people in specific circumstances there is no possibility of predicting, criminal law itself but also the loss of stability, national freedom could not guarantee, the citizen's life had no peace. So, criminal justice, is the only criminal terms may be within the meaning of justice. The interpreter has to do, is to make text and justice form. In a word, the interpreter must be according to the criminal law, criminal law, criminal substantial justice in the criminal law standard, and may have the meaning of the term, to determine the scope of the crime, so that the standard of justice, and criminal law essence of the meaning of the term corresponding to the correct definition of the crime, the connotation and extension of. Only in this way, in order to realize the justice of criminal law, realize the stability of criminal law.

Although the penal code is just words, but that does not mean just according to the text can be found all the true meaning of the criminal law. In fact, whether to take the subjective interpretation, or take an objective interpretation of the true meaning, are not simply words revealed by law of criminal law. Some national criminal law enacted nearly hundred years. Over the past hundred years, numerous scholars, judges, prosecutors, lawyers in the interpretation of criminal law; and, as long as the criminal law has not abolished, will also continue. Whether the disclosure of the legislator's original intention, or reveal the objective meaning of the law, will not spend hundreds of years or even longer time. People are always in the interpretation of criminal law currently in effect, because "a word usually meaning is gradually development, formed in fact appeared in the" [18]; living justice also need to identify the real social life; the real meaning of law not only hidden in the law text, but also hidden in the specific facts of life. Even if the interpreter simply according to written law concluded with justice, also only general justice; criminal law applicable in addition to the general justice, must also achieve individual justice in specific cases. So, on the one hand, just any kind of interpretation, are relative to the specific time, specific facts of life, life change in fact always require interpretation conclusion new. "Any kind of explanation if trying to replace the text with the authoritative interpretation of the final, openness, will prematurely phagocytic text life." [19]Open the interpreter must face up to the legal text, know the facts of life will continue to fill the legal meaning, so that the law has the vitality. On the other hand, "specification must enter into a relationship with the facts of life, it must meet the things. This is what we call the 'interpretation': legal significance to specification. However, this is not like the traditional methodology of law said, only hidden in the law, hidden in the abstract and the legal concept of broad sense empty, on the contrary, in order to seek the significance, we must go back to some intuitive things, back to the specific facts of life in the. No, not to judge the facts of life in the 'nature', 'is simply unable to explore the meaning of law'. Therefore, 'law' is not fixed things, it is with the facts of life changes -- though the legal text is always the same --, as life itself and change." [20] so, the life of the law lies not only in logic, but also in life.

Because of this, the definition of criminal law provisions do not define a specific crime, but in terms of abstract, general description of the specific types of crime. "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. If people in the unique and special in the legal discovery process into relationship which does not guarantee will always change life, so from a purely legal norms and act out of 'justice' would be a 'permanent, repeating the same' on a rigid and mechanical, automation or computer -- of -- 'justice', a non humanity 'justice'." [21] criminal law described the types of crime are open, although it has a fixed core, but no fixed boundaries. Even if lawmakers did not imagine that, after the explanation may completely prehension and in criminal law; or on the contrary. So, after explanation of criminal law, the criminal law is not enacted; although the criminal law text remains the same, but the content has changed. So, more intelligent than lawmakers penal code. [22]

Legal positivism of typical Bergbohm think, "the law does not need to be filled in from the outside, because it is successful at any time, within its richness, its logical extension force, in their own field to any time covers the whole legal judgments need." [23] however, "our time someone is no longer believe this point. Who can avoid a cannot be estimated, the entry into force of the regulations inconsistent in the drafting of the law? Who can foresee all constitute a fact, they hide in the endless and live in the sea, I once was all washed up on the beach?" [24] "obviously, lawmakers are difficult to foresee the coming out of the social life in a large variety of perplexing, situation." In order to meet the [25] law in an all new need permanent movement in the society, the interpreter in the face of a new life in fact, at the same time according to the idea of justice considers it necessary to carry out the criminal law regulation on time, will always live facts and norms of criminal law should be relative, the real fact of life has become the biggest impetus of the interpreter repeated as the true meaning of criminal law. The act of carrying knives, sticks and other loot, interpreter will tend to "weapon" is interpreted as a tool; and when the perpetrator carry a syringe containing the SARS virus when rob, will force the interpreter answered "syringe containing SARS virus is lethal weapon" such problems. Ask lawmakers had ever think anyone would carry a syringe containing the SARS virus to snatch, is not wise. So, when the interpreter will "snatching with lethal weapon" as the premise of judging the case, in the face of people carry a syringe containing the SARS virus to snatch the fact, must constantly on the elements ("weapon") to explain, unceasingly carries on the analysis to the reality. In other words, the judge's eye shall be kept returning to the size of the premise, the norms of criminal law and the facts of life interaction, in order to find the law, make a decision.

Specifically, "lawyers must take him shall the judgment, the individual case and the composition law legal system is more or less linked to various rules of the abstract grasp. Rules and cases are two limit his thinking. His consideration from case to rule, and from the specification to the case, of the two comparison, analysis, measure. Through the case may be, Feng used, may judge decision rules are analyzed; on the contrary, the rule is explained by the type of some particular case or cases." [26] in other words, in the interpretation of criminal law, the applicable procedures, must the fact of criminal law norms and case interaction analysis, on one hand the abstract legal regulations through interpretation becomes specific elements, on the other hand, the case fact specific via structure become type case, comparison of nature; the two is the thing of specification purposes, it is at this point, the formation of elements and case facts correspond to each other. "Norms become 'consistent with the existence of the', 'the case be conform to the standard'. And gradually specification into detailed, realistic, case became a clear outline, become type." [27] that is to say, on one hand we have facts and normative closer, on the other hand, the specification and the reality are close. The two is a simultaneous and continuous development by the fact that the self open to normative fact forward forward and specification. "Only in the specification and the facts of life, ideal and reality, corresponding to each other, to produce the actual law: law is corresponding to the ideal and the reality." [28]

For example, elements of the content is deliberately "destroy" public and private property, when the face is a case, the others from upstairs to downstairs TV fell, leading to the TV not only physical damage, and the loss of its original purpose, he could "destroy" explanation: "all or part of the goods material damage, damage, should use so that all or part of the goods fail to comply with the use of". Then a behavior consistent with the damaged elements of the conclusion. However, when interpreting the case is, B deliberately others value 10000 yuan ring thrown into the sea, defined the "destruction" will cause the innocent B behavior. When the interpreter that others ring worth protecting, B criminal behavior is punished, the inevitable re interpretation of "destruction". The interpreter may be "destroyed" to explain: "exercise physical force on the property value, utility, destruction of property or damage to property of the behavior", and will B behavior Abstract: the property of others (ring) exercise physical force, causing the loss of property (obviously not going b the abstract action as "the others ring transfer in the sea"), so that the ethylene action with damaged elements. However, when interpreting the case is, C deliberately others cage open, the others 10000 yuan worth of birds fly away, the two "destroyed" definition will cause the innocent C behavior. When the interpreter that others worth of criminal law for the protection of birds, C behavior should be punished, must re interpretation of "destruction". The interpreter may be "destroyed" to explain: "led to property utility reduced or lost behavior", and the C's behavior Abstract: make others lost property utility (obviously not going c the abstract action as "the birds return to nature"), so that the ethylene action with damaged elements. The interpreter repeatedly defined "destroyed", because of facing different facts of life; it is not simply to the first definition denied B, C behavior can be punished, because the interpreter to realize ring and others worth of criminal law for the protection of birds.

Rules and facts can agree, is due to the presence of a third nature, as mediators between as and existence -- things. "From a legal sense, 'the concept of the nature of things' does not mean factions debated issues, but to limit lawmakers enacted law, arbitrarily limits of interpretation of law. The essence is to resort to things, a person's desire not to order, but also to ensure victory, means living the spirit of justice on the legal sentence. Therefore, 'the nature of things' as asserting their rights, we have to be respected." [29] '"the nature of things' is a point of view, in the view of existence and when to encounter each other, it is the reality and the value of each other (' corresponding ') where the methodology. Therefore, from the fact inference to, or from the normative inference to the fact, is always a relevant inferences' essence '." [30] the reason that the others will ring thrown into the sea and destruction of property of others should be relative, because the provisions of the criminal law of the crime of intentional destruction of property is to protect the property of others, the destruction of property is prohibited; and the rings will be thrown into the sea of the nature of behavior of others, is the destruction of the property of others. If not from the point of view of the "essence of things", constitute elements of destruction of property of others and others will ring thrown into the sea of behavior, it is difficult to correspond to each other. Thus, only through the facts of life to explain the specification, in order to achieve the purpose of criminal law.

In short, the interpretation of criminal law is full of in the heart of justice, eye constantly from the criminal law and the facts of life. Of course, on the one hand, this does not mean that the judge must reach the guilty conclusion until. In any case can not go against the legal principles and distort the facts of the case that the guilty conclusion. In other words, in the premise of not only violates the crime punishment legal principle, and does not distort the facts, and the facts of the case if the corresponding to each other constitute a crime, shall be guilty of the conclusions drawn. On the other hand, don't assume that, more is to "set" the flaws of criminal law, the academic achievement. Because the criminal law does not set the task of loopholes, but instead should reasonably close loopholes. No one would think, can be interpreted as innocent of murder, is a great victory for the academic achievements and the legal principle of crime and punishment. Because of the ideological basis of the principle of legality is democracy and respect human rights, and will be based on the general standard of justice shall be punished as crimes of criminal law interpretation is not the provisions of the act, is not conducive to the protection of legal interests, necessarily violates democracy, thus fundamentally violates the principle of legality.

Through the fact that explain the norm, and some facts on specification, with some facts restrictions be quite different. "Will be familiar with be confused" is people often make the mistake of. [31] people in the interpretation of the specific elements of crime, accustomed to their own familiar facts considered should be facts, and that the criminal law is described in their familiar facts. For example, when people familiar with fraud among the two, is accustomed to thinking of the composition of elements of fraud only contains fraud among the two, and the triangle fraud (litigation fraud is a typical form of triangle fraud) excluded. When people are familiar with the secret theft, theft of property, is accustomed to thinking of elements of theft, not including open theft case. This is obviously between fact and norms, but also make the specification in a closed state. The new crimes emerging in real life, even the traditional crime, also there is no lack of means and ways of new. So, people familiar with is part of the limited facts. The elements described is a type of crime, as long as belonging to a type of crime, it is described the types of components of the subsumtion. Therefore, the specification of subsumtion Limited Co. the fact known to the interpreter, is not appropriate.

To sum up, corresponding to each other, the interpretation of criminal law is justice, criminal law and the facts of life. Here the first encounter doubt, because of the interpretation of the different values, for the same interpretation, some people think that is just, one might think that it is unjust, each according to his lights, it should be how to choose? Although this is a difficult problem, but it does not mean that the interpreter incapable of action. First, the principle of justice in general, basic, no significant differences between. Second, "the harmony between the law interpretation method is the best" (ConcordareLegesLegibusEstOptimusInterpretandiModus.). Because justice is empirical, justice is the core of equality, its requirement for all application of a uniform standard, therefore, interpretation of criminal law system, keep the coordination between the provisions of the criminal law, so that the same crime get the same treatment, is the sense of justice is injustice; otherwise. For example, if the interpreter will try every trick to mislead the public include the cheat, will form the following two aspects: on the one hand, when not coordinated behavior of people posing as workers of state organs who cheat other people's property, for booty, resist arrest or destroy criminal evidence, and on the spot the use of violence or threats of violence, because the behavior of human errors is not fraud, is not applicable to article 269th of the criminal law, and the emergence of injustice: other methods of fraud, may be converted to robbery, and as state organ personnel to cheat, not transformed robbery. [32] on the other hand, adopt other methods of fraud of public or private property, the highest can be sentenced to death in prison; and taken as state organ personnel of the fraud, the highest can be sentenced to 10 years in prison. [33] so, the interpreter should not think try every trick to mislead the public crime contains cheat. In other words, as long as will try every trick to mislead the public as contains no cheat, can make the penalties fair and reasonable, also won't appear punishment loophole. Third, the value of experience is the basis of justice consensus. The principle of justice "is derived from the concept and essence of things in particular, repeated the basic situation of the social life and the basic facts of moral connotation of social law. As long as they are with certain situations, and starting from the specific situation of human nature or of the nature of things, they are the foundation of their ethics, i.e. priori contains empirical elements. They belong to the people of the world; their limitations in this world." The [34] interpreter should be good at observing the life and psychology of ordinary people, accurate understanding of human nature and the essence of things. "The humanities' business' is the understanding of human representation. 'the most important is not the simple observation, or of human life is showing significant was observed, the interpretation of'. This applies to both the historian, also applies to the jurist." [35] fourth, in the interpretation of criminal law, not only to imagine "if lawmakers at will, what conclusions to draw", but also "if your imagination is lawmakers today, will draw the conclusion". Fifth, of course, "only they are justice, [36] things" in order to understand justice, justice can reveal the criminal law. "Scholar's conscience is the pursuit of truth, the truth of conscience." [37] only the conscience of interpretation of criminal law, not only the idea of justice in violation of the criminal law.

Doubt is: how to make criminal law norms and facts of life in the corresponding? This will require the repeated, reasonable use of various methods of interpretation, the accurate analysis of the facts, the essence of a correct understanding of the standard and the fact that, until justice conclusion. "Relative to the referee's meaning, the judge has previously judged with previously understood in the case. The judge has the judgment or understanding, do not need to blame, because all understanding is from a previous understanding, but we must put it -- this is not the judges the -- open, reflection, into the argument, and ready to be modified." Most of the [38] the words of criminal law has many meanings, it may have the meaning will be more broad, and the interpreter is always on the criminal terms (especially not unfamiliar terms) the existence of a previously understood, however, the interpreter not cling to the previous understanding, and should be your first before understanding on the concept of justice, under the relevant provisions. In fact, life of inspection. If the previous comprehension of justice, and the relevant provisions of coordination, able to handle realistic cases fair, can adhere to the previous understanding. However, when his pre understanding is against the idea of Justice (or violates the justice standard ordinary), to give it up; when the prior understanding of relevant provisions and the existence of criminal law of contradiction and conflict, must give it up; when his previous understanding can not deal fairly realistic cases (according to previous understanding of handling cases cannot be most people accept), had to abandon it. After abandoning the previous understanding, should seek to explain the conclusion of new, then new interpretation on the concept of justice, under the relevant provisions, life between fact checked, until come to a satisfactory conclusion. In other words, the interpreter must pay attention to the many levels of justice, may be different. Facing the questionable provisions, shall have the meaning of various possible, put forward a variety of different assumptions, the various viewpoints were fully demonstrated, repeatedly weighed, and see which one interpretation is most consistent with the idea of justice.

To explain the criminal law, should be good at using a variety of some interpretation methods. Although the interpretation methods are various, but not a method to interpret the criminal law can be all provisions are explained in accord with justice, and not beyond the words of criminal law may have meaning. Various interpretation method is not completely consistent, is not exactly the opposite. The so-called "not consistent", refers to a variety of interpretation itself has the difference, even have the opposite. For example, expanding interpretation and restrictive interpretation, obviously opposite in method. Interpretation of history and contemporary interpretation, is opposite in the method: the former attaches importance to criminal law making historical background; the latter attaches great importance to the need of social development. The so-called "not completely opposite", refers to the use of different interpretation methods in different occasions, may reach the aim, reveal the true meaning specification. For example, in this article, the use of expanded interpretation method, can realize the criminal justice; in this article, the use of restrictive interpretation method, in order to achieve the purpose of criminal law. And so on. Therefore, the interpreter in the pursuit of justice, achieving the purpose of criminal law interpretation method, must dare to try various allowed by the principle of legality.

Analysis of the facts of life, essential to accurately grasp the facts of life. The essence of every legislation and the legal discovery necessary "catalyst" behavior, it can make the idea of criminal law, legal norms and facts of life, and when to produce a correlation exists between the,, corresponding. For the analysis of case nature, shall be based on the nature of criminal law as a guide. For the case fact induction, toward the criminal law should be open, so that the case facts become one with the criminal law corresponds to the fact the idea. Therefore, the interpretation of criminal law, not law in the interpretation of. "The legal person can not in the knowledge of law, and is capable in Law -- normative perspective fact of life." [39]

The above discussion suggests: value analysis method, empirical method, social analysis is not necessarily contradictory; "what should be" criminal law "," criminal law, criminal law is what "is what" does not necessarily conflict; natural law, positivist jurisprudence, sociological jurisprudence is not necessarily the opposite.

Notes.

[1][de]H., Yin: "philosophy", translated by Lin Rongyuan, the Chinese press, 2003 edition, page tenth.　

[2][Japan] Yamada Sheng: "law", University of Tokyo press, 1964 edition, page seventy-second.　

[3][Germany] Yatu. Kauffman: "philosophy of law", Liu Xingyi et al, five Taiwan South Publishing Co., 2000 edition, page eighteenth.　

[4][de]H., Yin: "philosophy", translated by Lin Rongyuan, the Chinese press, 2003 edition, page 165th.　

[5]The]E. BODENHEIMER: "Jurisprudence: legal philosophy and legal method", translated by Deng Zhenglai, China University of Political Science and Law press, 1999 edition, page 271st.　

[6][America] Roscoe. Pound: "the interpretation of legal history", translated by Deng Zhenglai, China legal Press 2002 edition, page eighth.　

[7][de]H., Yin: "philosophy", translated by Lin Rongyuan, the Chinese press, 2003 edition, page 186th.　

[8][de]H., Yin: "philosophy", translated by Lin Rongyuan, the Chinese press, 2003 edition, page 213rd.　

[9]The Spanish scholastics Francesco. Suarez (FrancisoSuarez) language, from the]E. BODENHEIMER: "Jurisprudence: legal philosophy and legal method", translated by Deng Zhenglai, China University of Political Science and Law press, 1999 edition, page 337th.　

[10][Germany] Artur. Kauffman, winfrid. Hassemer editor: "Introduction" contemporary legal philosophy and legal theory, Zheng Yongliu translation, Law Press, 2002 edition, page 18~19.　

[11]The]E. BODENHEIMER: "Jurisprudence: legal philosophy and legal method", translated by Deng Zhenglai, China University of Political Science and Law press, 1999 edition, page 252nd.　

[12]The]G.D. James: "legal principle", translated by Guan Guisen, Chinese financial press, 1990 edition, page fiftieth.　

[13][de]H., Yin: "philosophy", translated by Lin Rongyuan, the Chinese press, 2003 edition, page 171~172.　

[14]See [Japan] Naito: "launched legal concept in criminal law history (a)", "magazine" load 1966 Vol. sixth No. second Tokyo Metropolitan University law society, 226th pages.　

[15]See [Germany] Yatu. Kauffman: "philosophy of law", Liu Xingyi et al, five Taiwan South Publishing Co., 2000 edition, page 144th.　

[16][method] Guizot: "history of civilization in Europe", Cheng Hongkui, Yuan Zhi, commercial press, 1998 edition, page seventh.　

[17]The German scholar Ophir J (Oph ü LS) language, from [de]H., Yin: "philosophy", translated by Lin Rongyuan, the Chinese press, 2003 edition, page 165th.　

[18][method] Guizot: "history of civilization in Europe", Cheng Hongkui, Yuan Zhi, commercial press, 1998 edition, page seventh.　

[19][English] Wayne. Morrison: "law", translated by Li Guilin, Wuhan University press, 2003 edition, page 555th.　

[20][Germany] Yatu. Kauffman: "by analogy with" essence of things "-- a type theory", translated by Wu Congzhou, the Taiwan academic culture Co. Ltd. 1999 edition, page eighty-ninth.　

[21][Germany] Yatu. Kauffman: "philosophy of law", Liu Xingyi et al, five Taiwan South Publishing Co., 2000 edition, page 122nd.　

[22]See [Germany] Yatu. Kauffman: "philosophy of law", Liu Xingyi et al, five Taiwan South Publishing Co., 2000, pp. 236~237. 　

[23]Quoted from [Germany] Yatu. Kauffman: "by analogy with" essence of things "-- a type theory", translated by Wu Congzhou, the Taiwan academic culture Co. Ltd. 1999 edition, page seventh. 　

[24][Germany] Ladd Bruch: "Introduction to law", m health, Chinese encyclopedia press 1997 edition, page 106th.　

[25][method] Henry levy. Henri levy Bruhl: "sociology of law", translated by Xu Jun, Shanghai people's publishing house, 1987 edition, page sixty-third.　

[26][de]H., Yin: "philosophy", translated by Lin Rongyuan, the Chinese press, 2003 edition, page 196th.　

[27][Germany] Yatu. Kauffman: "philosophy of law", Liu Xingyi et al, five Taiwan South Publishing Co., 2000 edition, page 237th.　

[28][Germany] Yatu. Kauffman: "philosophy of law", Liu Xingyi et al, five Taiwan South Publishing Co., 2000 edition, page 148th.　

[29]Yan Ping compilation: "he set", translated by Deng Anqing, Shanghai far east press, 2003, pp. 195~196.　

[30][Germany] Yatu. Kauffman: "by analogy with" essence of things "-- a type theory", translated by Wu Congzhou, the Taiwan academic culture Co. Ltd. 1999 edition, page 103rd.　

[31]DavidNelken, ContrastingCriminalJustice,England:AshgatePublishingLtd.2002.P241　

[32]In this case, if only to "the provisions of the criminal law originally so, explain the incapable of action" on the grounds, to maintain the uncoordinated, not just the situation, not an irresponsible attitude. 　

[33]Some people think that, in this case, can be identified as the imaginative joinder of offenses, a heavier punishment, or admitted that although the overlap of articles of law, but adopts the principle of weight method is better than the light method. But, first of all, if will try every trick to mislead the public crime include the cheat, it and common fraud is not imagination of concurrence relationship, only is the overlap of articles of law. Secondly, article 266th of the criminal law provisions can only take special law is superior to common law principles ("the provisions of this act, in accordance with the provisions of" is this meaning), if the weight method is superior to the light of the principle of the law of the violation of article 266th of the criminal law.　

[34][de]H., Yin: "philosophy", translated by Lin Rongyuan, the Chinese press, 2003 edition, page 165th.　

[35][de]KarlLarenz: "the methodology of jurisprudence", translated by Chen Aie, Taiwan five southern Publishing Co., 1996 edition, page sixty-third.　

[36][de]H., Yin: "philosophy", translated by Lin Rongyuan, the Chinese press, 2003 edition, page ninth.　

[37][Japan] Dleto Shigehikaru: "legal basis", Yuhikaku publishing 1996 edition, page 357th.　

[38][Germany] Yatu. Kauffman: "philosophy of law", Liu Xingyi et al, five Taiwan South Publishing Co., 2000 edition, page fifty-eighth.　

[39][Germany] Yatu. Kauffman: "by analogy with" essence of things "-- a type theory", translated by Wu Congzhou, the Taiwan academic culture Co. Ltd. 1999 edition, page eighty-seventh.

 

 

 

 

 

 

 

 

Note: I am writing the graduation thesis, whenever I do not want to write, take out"Criminal law" theory of HermeneuticsHave a look this preface, immediately be in fine fig! Do not know, this is the law of fortune or misfortune!