Discussion On The Science Of Setup Of Criminal Law Articles

The Legal form of codification country is the article of law which is the indispensable part to a law1. The article is the basic unit and foundation of the laws, with no exception of the criminal law. Though the criminal legislation cannot be considered unsuccessful solely because of the deficiency of individual article,the success of the criminal legislation is undoubtedly based on the successful setup of the articles of the criminal law. It may be considered that the setup of the criminal law articles is the responsibility of legislator, or there's no theoretical value for the research. Therefore, it is hardly to find any monographs and papers researching in this field2. This paper, entitled Discussion on the Science of Setup of Criminal Law Articles, tries to initiate a concrete practice through the researching method of demonstration on the basis of the fundamental theory of legislation, jurisprudence, criminal law, logic and other subjects in order to comprehensively and objectively research and review for the setup of the articles of domestic criminal legislation. The author also wishes that this paper could provide some suggestions for the legislature to enhance our criminal legislating skills and improve present criminal law.This paper is divided into five chapters with about 193 thousands words.The first chapter is the Basic Principles of Setup of Criminal Law Articles. First of all, it discusses the concept and characteristics of the criminal law articles. It abstracts the concept and characteristics of the criminal law articles on the basis of differences between article and regulation, and defines the criminal law article as expressing forms of character and language to indirectly or directly narrate the criminal norms or other components in the substantive criminal law. Then it puts forward four principles of setup of the criminal law articles and discusses them respectively. The first is the principle of explicitness which is the requirement for the principle of that crimes and punishments are all stipulated by law . It also defines the content and estimating criterion of explicitness. The second is the principle of reasonableness which includes the reasonableness of setup of crimes, the reasonableness of setup of punishment and the coordination and balance between crime and punishment. The third is the principle of rigor which requires the compactness and harmony among the criminal law articles and each article should be comprehensive and integrated. The fourth is the principle of democracy which requires us to make further efforts in the field of the setup of the articles in the criminal law to enhance democracy on the procedural level, fully reflect the will of the people and respect the regularity at the same time.The second chapter is the Structure of the Criminal Law Articles. This chapter and the third chapter detailedly analyse the criminal law articles in a static view. It analyses the structure of the criminal law articles from three levels. Firstly, it researches the whole structure of criminal law articles and concludes the rules of whole structural arrangement. Secondly, it researches the structure of articles in the general provisions of the criminal law, and respectively analyses the characteristics of the sentence structure of articles of basic principle, basic concept and general provision. It mainly analyses the structure of the sentences containing Should and But in the general provision of the criminal law. Thirdly, it researches the structure of articles in the specific provision. It analyses the structure and the function of the sentence narrating facts about a crime and legal punishment in the typical article in specific provision. And then it analyses the structure and function of non-typical crime-punishment articles, interpretational articles, general principles articles and procedural articles.The third chapter is the Function of the Criminal Law Articles. This chapter discusses the function of the criminal law articles from two levels. Firstly, it discusses the function of articles in general provision of the criminal law and claims that it includes four functions, namely instruction function, announcement function, elimination function and complementarity function. The instruction function means that the basic principles in the general provision of the criminal law have the instructive value not only for the criminal legislation, but also for the legal practice after the criminal law has taken effect. The announcement function means that the general provision of the criminal law announces the value, aims, missions and the basic measures to realize the missions of the criminal law to the public. The elimination function is to limit the scope of crimes, namely preventing any conducts without essential significance from becoming crimes. The complementarity function means that the articles in the general provision of criminal law regulates punishment rules for various kinds of atypical criminal state in order to tighten the net of justice of criminal law. Secondly, it discusses the function of articles in specific provision of the criminal law and claims that it includes four functions, namely guiding function, identification function, measurement function and restraint function. The guiding function means that various kinds of the criminal regulations in the specific provision of criminal law should direct people's specific behavior to avoid committing a crime. The identification function means that the articles of specific provision of criminal law could identify lots of important conceptions and categories. This function has different forms in different fields of the specific provision of criminal law. The measurement function means that people could calculate the expense or cost of every crime through the articles in the specific provision of criminal law. The restraint function means that the specific provision of criminal law has the restraining effect for judge in the conviction and the measurement of punishment.The fourth chapter is the Process of the Setup of the Criminal Law Articles. This chapter demonstratively researches the practical operation of the setup of the articles in the domestic criminal legislation in a dynamic view. It detailedly reviews the criminal law article's drafting, consideration, adoption, amendment and improvement by fully using available legislating data at present. With the abundant legislating data, it fully explains that the basic principles are better observed in domestic criminal legislation to ensure its quality, and especially, represented by the articles of Self-defense and Larceny, the changes in the draft of criminal law articles are earnestly and carefully analysed. Meanwhile, it points out that there are still some problems in the setup of the criminal law articles, such as though the preparation of drafting is sufficient, it still lacks democracy, and the procedures of consideration and adoption of legislator is hurried, especially the amendment is too frequent to maintain the quality and authority of the criminal law and so on.The fifth chapter discusses the Imperfection and Improvement of Articles of the existing Criminal Law in our country. It comprehensively reviews the articles set up in the existing criminal law on the basis of above theory and combining with the foreign correlative legislation. In the review of the relative articles in the general provisions of criminal law, it is considered that there are at least seven articles having defects and some articles should be added to make up for the loopholes. In the review of the relative articles in the specific provisions of criminal law, it is considered that there are also many defects, such as lack of reasonableness about concrete amount in specific provisions of criminal law, lack of rigor about special subjects in part of articles, redundant articles existing in specific provisions of criminal law, unreasonableness of legal punishment in part of articles, obvious loopholes existing in some articles on the point of legislative significance, serious imperfection of the language used in specific articles, failure of some articles to realize the legislative intent. And it puts forward detailed amending suggestions for above seven defects respectively.