On The Advocation Of The Theory Of Substantive Interpretation Of Criminal Law

Starting from the concept and basic proposition of the Theory of Substantive Interpretation of Criminal Law ("TSICL"), this paper defines clearly the boundary thereof, and also analyzes the differences with the Theory of Formal Interpretation of Criminal Law ("TFICL") from both theoretical and practical aspects. Then the defects of TFICL as well as merits of TSICL are exploited separately to support the establishment of the concept of TSICL. Based on the aforesaid contents, responses to criticisms from TFICL are exhibited, and theoretical self-improvement of TSICL is also conducted.Following the analysis path of theoretical interpretation to concrete practice, the article uses guidance of the basic principles of TSICL to demonstrate the basic characteristics of it-" reciprocating between the criminal rules and the facts of cases", in order to deeply explains the practicability of TSICL. Methods of case study are widely used in the article to demonstrate the analysis methodology of substantive interpretation, so that a systematized theory would be established instead of a mere one-sided discussion and analysis.The research status at home and abroad of the interpretation of criminal law: Abroad, criminal law interpretation theory has already had its development history of more than 100 years, which has a solid theoretical foundation of philosophy, and is experiencing a methodological shift to ontology, and even deconstruction interpretation of law. As Germany and Japan, the study of interpretation of criminal law is relatively highly developed. The domestic study of legal interpretation of China left far behind, and followed steps from Germany and Japan. Legal interpretation of China lacks of China concerns, and also lacks of research on basic theory of criminal law, making it a weakness impeding the criminal law interpretation development. However, debates with respect to academic standpoints have initially formed in Chinese criminal law research area, which strongly impetus the study of the interpretation of criminal law.The author studies TSICL from the view of ontology, and analyzes its concrete application in Chinese judicial practice. As a new discipline of criminal law theory, the theory of criminal law interpretation has not been fully established. It’s often too rigidly adhered to the mode and position of foreign research, while missing up the essence thereof to open up a theory with Chinese characteristics. Meanwhile, the domestic study of criminal law interpretation also lacks of analysis focusing on basic theory. On the basis of analyzing the connotation and basic characteristics of TSICL, criticisms from TFICL are retorted accordingly, and theoretical self-reflection is also conducted.Firstly, the author analyzes deeply the TSICL from aspects of basic principles, criminal rules and case facts. Methods of research include historical research method, philosophy path, comparative study method and case study method. The perspective of ontology research, criticism to TFICL and self-reflection of TSICL, concerns on concrete practice of theoretical research are all innovative perspectives of this paper.And on the basis of concept analysis of TSICL, the viewpoint of this paper is presented-"reciprocating between the criminal rules and the facts of cases". Then the basic proposition of TSICL is put forward, that is, orientation on the practical character of criminal law, orientation on conceptional social changes in criminal law, and emphasis on the stability of the criminal law while pursuing both the substantive justice and justice of individual cases. This article also analyzes TSICL from the perspectives of systematization, ambiguity, hysteresis and conflicting of criminal law norms to demonstrate the necessity of TSICL.Secondly, discussion is made on the debates of the two kinds of interpretation positions from both theoretical and practical level. Debates concerning formal rationality and substantive rationality, definition of the Principle of Crime and Penalty Defined by Law conception, legal demonstrating methodology and understanding of social harmfulness are all detailed demonstrated and discussed. Then the paper analyzes the two interpretation positions from the aspects of the controversial issues of the pursuit of formal or substantive rationality, the connotation of "legality", the division of formal profile and substantive profile, the different understanding of the analogy interpretation (analogy reasoning), etc. According to the characteristics of the crime constitution based on social harmfulness in the theory of criminal law, the different views of the two positions are separately showed.Thirdly, Defects of TFICL are deeply analyzed. The usage of formal reasoning method of Syllogism neglects the substantive justice of criminal law, which would easily lead to mechanical reasoning thus rendering ignorance of the realization of the justice in individual cases; focusing on strict interpretation while neglecting social development and changes, which would easily lead to separation of fact judgment from normative analysis; copy of the historical legal experiences of Western countries while neglecting the specific circumstances of the development of China’s criminal law, which would easily lead to ignorance of the expectation of Chinese people to substantial justice. After analysis and criticizing the aforesaid trends in criminal law interpretation, rationalization of TSICL is presented. The author also advocates that fact judgment and value judgment should be unified, formal justice and substantive justice should be unified, and protection of legal interests and punishment should also be unified.Fourthly, criticisms from TFICL on TSICL are refuted one by one, and then the paper turns to conduct self-reflection on the theory to achieve self-improvement. The criminal law interpretation should appreciate practical research, in order to avoid hollowing out of the philosophy of criminal law. At the same time, we should also avoid legal pragmatism while in lack of theoretical abstraction, realize effective incorporation of theory and practice, strengthen the research on the refinement of the demonstration method, pay attention to the effectiveness of the method and the combination of logical reasoning and case facts, pay close attention to the research of due process, pay close attention to the procedure of the criminal law interpretation of the constraints and strengthen the legal argumentation, pay close attention to the diversity analysis paradigm, etc, so as to further deepen the research in TSICL.Finally, the fundamental principles in application of TSICL are demonstrated in the paper. Formal profile and substantive profile of the Principle of Crime and Penalty Defined by Law should be incorporated, consolidated judgment based on fact of the cases and criminal rules should be realized, and value judgment should be incorporated with interest measurement. Specific rules and crimes are selected and listed to fully discuss the application of TSICL in criminal rules. Different levels of its application from aspects of case facts are also demonstrated, namely legal facts versus objective facts, core facts versus marginal facts, guilty facts and guileless facts, procedural facts and substantive facts, etc. The application of TSICL would reflect criminal procedural law into criminal law interpretation, and also reflect the consolidation of criminal substantive law into criminal procedural law, so that the systematization, logicality and practicability of TSICL would all be better presented.