Improvement Of China's Criminal Judicial Interpretation Under Principle Of Legally

This dissertation discussing :contradiction of current china's criminal Judicial interpretation system and principle of legally ,improvement of system and method of china's criminal judicial interpretation .By discussing judge interpretation system as form of criminal Judicial interpretation system and path of improvement of method of china's criminal judicial interpretation, this dissertation wants to solve the problem of how to improve china's criminal judicial interpretation under principle of legally.The first part is forewords , discussing sense of topic , advantage and disadvantage of current research , advantage and disadvantage of this dissertation. At first , the writer discussing sense of topic. The writer considers whether we can use objective stand-point and leak-completed interpretation , increasing interpretation should be discussed as we researching china's criminal Judicial interpretation under principle of legally. The current situation of china's criminal Judicial interpretation system is: it's contradicting with principle of legally. Whether we can solve this contradiction by judge interpretation system and precedent system under objective stand-point should be discussed. After that, the writer talks about advantage and disadvantage of current research and advantage and disadvantage of this dissertation.The second part is chapter 1, discussing the necessary of Judicial interpretation in criminal law's realization .At first , the writer talks about the course of Judicial interpretation being refused to being accepted and the course of criminal Judicial interpretation being refused under absolute principle of legally to being accepted under comparative principle of legally. The writer also improving the necessary of criminal Judicial interpretation in criminal law's realization by logic theory and language theory .The third part consists of chapter 2and chapter 3and chapter 4 , discussing contradiction of current china's criminal Judicial interpretation system and principle of legally.In chapter 2, the writer discussing contradiction of current china's criminal Judicial interpretation system with legally request under principle of legally. At first, the writer discussing means of legally request. After that, the writer discussing contradiction of current china's criminal Judicial interpretation system and principle of legally. Before this being discussed, situation of current china's criminal Judicial interpretation system should be discussed."one class two bodies"can not express the nature of current china's criminal Judicial interpretation system. Current china's criminal Judicial interpretation system is: The supreme judicial organs have Judicial interpretation rights in law, bodies of supreme judicial organs and local judicial organs make interpretation articles , courts and judges make case interpretation. Supreme people's procuratorate is not judicatory , who's interpretation cann't determine offense and penalty ,so who's interpretation has no authority. All interpretations in current china's criminal Judicial interpretation system are contradicting with legally request under principle of legally, so supreme people's court can make interpretation but not abstractive interpretation.In chapter 3, the writer discussing contradiction of current china's criminal Judicial interpretation system and identity request under principle of legally. Identity request consists of assurance and solidity , assurance means law-maker should make articles consist of all offense-standing elements , solidity means judge should apply cases with articles according with law-maker's original intention. Articles should consist of all offense-standing elements, but for some reasons , some elements in articles not be clearly expressed but be concealed . So judge should embody elements being concealed. After discussing that ,the writer discussing contradiction of current china's criminal Judicial interpretation system and identity request under principle of legally.In chapter 4, the writer discussing time effect -scope problem of current china's criminal Judicial interpretation system.The fourth part is chapter 5, discussing path of improvement of system of china's criminal judicial interpretation .In this chapter , the writer discussing righteous of judge interpretation system and precedent system and path of building precedent system. The writer think that judge interpretation is reasonable .At first, the writer proving it with contradiction of current china's criminal Judicial interpretation system and principle of legally. At second, the writer proving it with modern hermeneutic theory. After that, the writer discussing the rightness of precedent system as form of judge interpretation system. The path of building precedent system is: Firstly, supreme people's court make some precedents according with code and current judicial interpretation of supreme people's court, supreme people's court make new precedents identifying new decisions made by judges with"distinction".The fifth part consists o after f chapter 6 and chapter 7, talking about path of improvement of criminal judicial interpretation method.In chapter 6, the writer consider that criminal judicial interpretation method consist of historical interpretation, literal interpretation, systematic interpretation. Historical interpretation should be firstly used , literal interpretation should be used secondly, systematic interpretation for leak-completed is necessary. Firstly, the writer talking about advantage of historical interpretation for ensuring law-maker's original intention , secondly, the writer talking about sense of literal interpretation for ensuring law-maker's original intention. The writer also talking about using method of literal interpretation, type-face interpretation should be used in literal interpretation, morpheme analysis cann't be used because of leading mistakes, reference book should be used. Disadvantage of literal interpretation also be discussed. The writer considers that systematic interpretation for leak-completed is necessary. Systematic interpretation must be limited by people's utmost forecasting and social stability . Systematic interpretation can institute certainty interpretation , opposition interpretation, exclusion interpretation.In chapter 7, the writer discussing how to interpret no.17 article in criminal coe ,how to interpret"rob by imitating army soldier or policdeman", how to interpret rob by entering room to describe how to use interpretation method under principle of legally.The sixth part is epilogue ,discussing content and viewpoints of dissertation in brief.