Criminal Law Is Explained On The Theory

This book deal with the issues in seven chapters.The first chapter surveys the history of interpretation in relation to the Chinese-foreign criminal law, delineates briefly a foundamental outline of the historical development of Chinese-foreign criminal law interpretation,and highlights the characteristics of Chinese-foreign criminal law interpretation of different historical time.The second chapter makes a detailed study of the conception , function and classfications of the criminal law interpretation. In respect of the conception of criminal law interpretation, the writer, viewing from both dynamic and static angles on the basis of analysing various definitions existed in theory of chinese criminal law,redefines the criminal law interpretation. And in accordance with such a new definition, the writer at same time elucidates comprehensively the feature of the criminal law interpretation. In respect of the function of the criminal law interpretoin, the writer takes the view that the criminal law interpretation is of five main functions—directing and standardizing the criminal justice;supplementing the criminal law legislation;perfecting the criminal legislation;promoting the legal eduction of the criminal law;and bringing about a prosperous future in theory of the criminal law . The specific contents of these five functions are e-laborately expounded too in this chapter. In respect of the classification of the criminal law interpretation,the writer proposes to divide the criminal law interpretation,according to its effect.into criminal law legislative interpretation,criminal law judicial interpretation and criminal law academic interpretation,under the requirement of this book's sturctural construction,by introducing and analysing a variety of currently existing classificatin methods in criminal law theories.The third chapter concerns mainly with the foundamental ideology and basic principle of the criminal law interpretation. The writer sets forth his own position on the ideology of the criminal law interpretation, through a introduction and detailed analysis of the doctrine of "Subjective Interpretation","Objective Interpretation" and "Synthetic Interpretation". With regard to the principle of criminal law interpretation,the writer claims to have the fellowing five main principles: 1) priciple of legitimacy;2 ) principle of policy governing;3 ) principle of reasonableness;4 ) principle of entity;5 ) principle of being specific and explicit, expounding meanwhile the implication, grounds and significance of each principle.The forth chapter dwells on the methodology of the criminal law interpretation. At first, the writer expounds thoroughly the literal interpretation as well as grammatical interpretation which belong to the method-of grammatical interpretation, in accordance with the principle of legal linguistics and modern Chinese grammar. Then,the writer makes a specific study in eight sorts of interpretation methods such as: extending interpretation j re-strinting interpretation;natural interpretation;opposite interpre-tation;systematic interpretation;historical interpretation;comparative interpretation;objective interpretation, all of which are within the realm of logic interpretation method. Finally,the writer indicates, that the application of the criminal law interpretation can not but coply with the following rules :l)grammar prior rule —employing firstly the method of grammatic interpretation to construe the criminal law provisions;2)single rule—not applying the method of logic interpretation when the implication of the criminal law privision is not ambigous or implicit by virtue of grammatical interpretation;synthetic rule—empolying both the methods of grammatical interpretation and logic interpretation to interpret the criminal law provision;4)logic prevailing rule —applying prevalingly the logic interpretation when the application of the grammatical interpretation conflicts with that of the logic interpretation while the same criminal law provision is interpreted.The fifth chapter observes the relevent issues on criminal law legislative interpretation. The main contents are as follows: the definition,feature, formality,structure,formulation,the differences between the criminal law legislation and the criminal law legislative interpretation, the present situation and the cause of formation of the criminal law legislative interpretation of our country and suggestion for the improvements.The sixth chapter probes into the issues of criminal law judicial interpretation,especially of the definition,feature,classification, time vilidity, formulation, promugation, application, introspection and perfection of the criminal law judicial interpretation, in addition to the documentary structure of the criminal law judicial interpretation, and the differences between the criminallaw judicial interpretation and criminal law legislative interpretation. Among them, the definition, structure, classification, application, formulation and promulgation of the criminal law judicial interpretation, as well as the existing problems in criminal few judicial interpretation of our country and approaches to resolve those problems ,are particarly expounded. In respect of definition of the criminal law judicial interpretation,the writer gives a new remark on it while analysing the three viewpoint—"broad sense doctrine","narrow sense doctrine"and"neutral sense dectrine "existed in bur country's theoretical field of the criminal law ,with the consideration of both our country's provisions of judicial interpretation and the general definition of the criminal law interpretation claimed by writer. In respect of the classification of the criminal law judicial interpretation, the writer postulates to divide them from seven different angles . On the structure of the criminal law judicial interpretation, the writer assumes that the essential elements to constitute the document of the criminal law judicial interpretation and their orders should be : document' name,organ or institution and time of formulation,file number, cause, purpose of formulation, text, time vilidity and appendix. While discussing these issues,the writer criticizes the current im-porper disposition of documentary structure in regard to the criminal law judicial interpretation as its names being too num-berou and non-scientific and its file number being mixed up,and therefore proposes an effectivly operative method to substitute it . In respect of the formulation of the criminal law judicial interpretation, the writer puts forward detail procedures. For the promulgation, the writer maintains to promulgate exclusivelythrough public news medium. As for the application of the criminal, law judicial interpretion, the writer bring forward his viewpoints in regard to both substantial and formal issues of such application, presenting eight problems existed currently in our country's criminal law judicial interpretation, revealing the significance of practically solving those problems.The seventh chapter surveys the relevent issues on the criminal law academic interpretation. At first,the writer observes the general issues such as the definition and characteristics of the criminal law academic interpretation, as well as its difference from the criminal law legislative interpretation and the criminal law judicial interpretation. Then the writer focuses on the function of the criminallaw academic interpretation,pointing out that criminal law academic interpretation is the basis and key gist of all the criminal jurisprudence,and is of great and indirect function for the criminal law justice. Finally,the writer eleborates the policy guarantee and requisite condition to further flourish our country's criminal law academic interpretation and denotes the trend of the criminal law academic interpretation development in our country. According to writer's opinion,the policy guarantee to further flourish the criminal academic interpretation lies in the academic freedom, and the requisite condition to further thrive the criminal law academic interpretation depends on the academics'spirits of ready exploration. And the witer prospects that the trend of the criminal law academic interpretation development in our country would be that of being more specific, more profound and more practical.