On The Construction Of Norms Of Criminal Judgment

The vitality of the law lies in the enforcement. Without sound implementation,even a perfect law would be nothing more than a dead letter. The focus of the rule ofcriminal law has gradually shifted from legislation to judicial aspects as the principleof nulla poena sine lege has established in legislation along with the increasinglyimprovement of the system of criminal law. In this paper, I would like to take theperspective of applicable method of norms of criminal law, while making the practiceand performance of criminal justice the subject of my research, and come to aconclusion that the norms of criminal judgment, which have been taking shape duringthe interaction between textual norm of criminal law and the facts of specific criminalcases, are not only the outcome of criminal law practice standardization and the majorpremise of the criminal judgment, but,more importantly, are the substantial groundsfor criminal judgment as well. Being centered around the construction of criminal lawjudgment norms, the paper critically reconstructs the criminal judgment mode andanalyzes, also demonstrates the basic stance&path as well as the operation of theconstruction of criminal judgment norms in an effort to assure the truly realization ofthe nullum crimen sine lege during the practice of norms of criminal law through myresearch on the methods to build up criminal judgment norms. This Paper is dividedinto five chapters besides the Introduction, approximately110,000words.The first chapter proposes the concept of the norm of criminal judgment.Basedon the analysis towards the concept, nature and pattern of its existence, I put forth the concept of the norm of criminal judgment and clarified its fundamental nature bydifferentiating it from rule of criminal judgment, opinions from both the prosecutionand the defense and judgment rules for other legal fields. I also studied the necessityof the construction of norm of criminal judgment. Although with dual attributes as acode for both the conduct and judgment, the norm of criminal law is basically thelegal norm navigating the criminal judge‘s conviction and sentencing, thus, it showsan intense character as norm of judgment in its nature. Norm of criminal law are withdifferent characters when acting as static norm and dynamic norm, the former are textnorms of criminal law, while the latter are the norms of criminal judgment. So-callednorms of criminal judgment are kind of practical formation established with the textnorm of criminal law as the source of law during the juridical practice of criminaljudges and are based on the interaction between the text norm of criminal law and thefacts of cases. As a formation of norm with the judgment behavior as the carrier, thenorm of criminal judgment is an immediately practical norm and a dynamic formationof norm in juridical sense. Practically speaking, the text norms of criminal law tend torepresent as a conclusion in regard with the explanation to the interactive constructionof the fact of specific cases and the text norm of criminal law. They are practicalformation of the norm’s operation and are mostly reflected in the criminal judicatorygrounds. They enjoy the spirit of the norms of criminal law while without a norm’sappearance and have immediate impact on the facts of cases invisibly. I put forth theconcept of norms of criminal judgment in an effort to urge the people to acknowledgethe vitality and complicity of the operation of criminal law practice, and to prompt thejudicial personnel to obtain the major premise of criminal judgment–the norms ofcriminal judgment through taking advantage of judgment methods to discover,interpret and demonstrate the norms of criminal law applicable to specific cases, andthereby constantly enhance the objectivity and fairness of the criminal judgment.In Chapter II, I conducted a research on the basic pattern of the norm of criminaljudgment. Firstly, I criticized the traditional pattern of criminal judgment and Ibelieved that negativism to judgment methods is by no means desirable; however, thejudicial syllogism also has its limitation and deficiency. The judicial syllogism, which is far too simplistic when facing with the matter of criminal judgment, couldn’t getany of the major/minor premises for legal judgment, furthermore, it could neithersafeguard the authenticity and reliability of the judicatory conclusion, thus, it mayneed to be improved by reconstruction given its inefficiency when coping with tasksin criminal judicatory and realizing its noble mission in related with the principle ofnulla poena sine lege. Rather than denying the positive function of judicial syllogism,the reconstruction itself aims to make up for the deficiencies and limitations ofjudicial syllogism. Therefore, I called for, in this paper, maintaining the basicframework of judicial syllogism in criminal judgment and using the theory ofconstitutions of a crimes as the basic instrument, through the interaction betweennorms and facts, meanwhile, deploying a series of legal methods which includes lawdiscovery, legal interpretation and legal argumentation to build up the norms ofcriminal judgment applicable to specific case, and accordingly with the norms ofcriminal judgment as the major premise, while the fact of specific crime as the minorpremise to obtain an appropriate judicatory conclusion based on judicial syllogism.The third chapter discusses, mainly centered around topics such as “how toadhere to the principle of nulla poena sine lege”,“how to make a right decisionbetween subjectivism and objectivism”and so forth, the basic stances involved inconstruction of norms of criminal judgment The paper argues that consistentlyenforcing and realization of the principle of nulla poena sine lege rvence is not onlythe important mission but also the basic stance of the criminal judgment. Theprinciple of nulla poena sine lege rvence could have different connotation when bedeemed an absolute/relative principle, and there have been some conflicts betweenthe one-aspect theory and two-aspect theory all along in regard of this principle. Thepaper make it rather clear that we should uphold one-aspect theory while against thetow-aspect theory; adhere to principle of nulla poena sine lege rvence in a relativist’sway and fight against dogmatism and mechanism. The spiritual substance of nullapoena sine lege rvence is to be in favor of the defendant.“in favor of defendant”should not only be implemented wherever doubts to facts arises but be upheldwhenever questions emerges in the application of law. It’s not an unprincipled compromise or the excuse for a sluttish judicial person to pass the buck, instead, it’sall about the limited human cognitive ability. In this regard, it is necessary to establisha scientific judicial decision-making mechanisms and procedures. In the process ofimplementing the principle of nulla poena sine lege rvence, we will have to bear somecorresponding costs inevitably. Thus, we should keep the judicial restraint stance andassure the restraining principle during criminal law intervene with strict legalinterpretation rather than rushing off on individual impulse. When facing with thedecision between subjectivism and objectivism, we should choose objectivism as thebasic stance for construction of criminal judgment norms and adhere to theincriminating foundation of behavior and actual damage and then take into accountthe restriction subjective factors weighing on the objective behavior, with an“objective matters first and then subjective matters” thinking pattern, to assess thebehavior and determine a crime.The fourth chapter focuses on the elementary path to construct the norms ofcriminal judgment. In Chinese criminal law, the theory of constitutions of crimes isthe fundamental theoretical instrument to determine whether a behavior constitutes acrime. Stemming from the criminal theory of former Soviet Union, the theory ofconstitutions of crimes appears to be regarded as of validity beyond doubt. However,from a logic reasoning perspective, the reasoning process of "constitutions of crimesare determined by law" is suspected of circular reasoning. And, when looking at itsmode of existence, we could hardly find a single line of related provision in the penalcode. Furthermore, various theories regarding the constitutions of crimes have theirimpact on the theory of "constitutions of crimes are determined by law", and somescholars even argue that the "constitutions of crimes are determined by law" wouldlead to nihilism in the principle of nulla poena sine lege. It is exactly due to theinevitable defect in the theory of " constitutions of crimes are determined by law" thatthe theory of constitutions of the crimes could manage to come on board.Constitutions of crimes, unlike the fact model or legal model as the criminal norms,are theoretical model for interpretation of the norms of criminal law. As to theconstruction of norms of criminal judgment, the theory of constitutions of crimes provides a theoretical model to determine a crime and list the prerequisites requiredfor a behavior to be deemed a crime; it establishes a framework system for theinterpretation of criminal law and make it possible for the criminal judge to interpretthe criminal law systematically though orderly laying out the elements in a manner of“objective matters first, then subjective matters” and elements comparison betweendifferent crimes; it also helps to categorize the facts of crimes and concretizes thecriminal norms with the theory of constitutions of crimes acting as the medium to setthe stage to connect the criminal norms with facts of cases, and delivers an elementarypath for constructing the norms of criminal judgment and making a criminal judgmentdecision..Chapter5analyzes how the construction of criminal judgment norms works.When facing with the facts of cases, a criminal judge should look into the norms ofcriminal law in the first place, and use them to guard his criminal judgment. Thesearching for norms of criminal law also involved the legal discovery process.Generally speaking, a criminal judge could discover any norms of criminal lawapplicable to “the case” in light of his experience and legal sense based on hisintuitive thoughts. The experience and legal sense are derived from a long-term legaltraining and practice. In practice, the theory of constitutions of crimes has its valueduring the legal discovery in criminal judgment as a legal instrument. The theoryprovides a framework and guide for the judge to analyze facts of cases andacknowledge the norms of criminal law.Basically, the certain group of normsapplicable could be mostly determined by the object of specific legal interest violatedby the behaviors and the judge could pertinently target the concrete norms applicablethrough analysis of the behavioral pattern and harmful consequences. However, thenorms of criminal law could not be applied to the facts of cases directly after beingdiscovered and must go through a rational interpretation by the criminal judge. Thepaper insists that the judge should be the nature principal to interpret the criminal law,which is not only required by criminal judgment but also decided by the characters ofinterpretation to criminal law application. As to the interpretation of the criminallaw by the judge, it tends to present with various characters such as individuality, intersubjectivity and practicability and consequently deserve our attention to beprohibited from dissimilation. In regard with the method applied in criminal lawinterpretation, which covers a wide range from semantic interpretation, systematicalinterpretation to historical interpretation and teleological interpretation, are both thefundamental interpretation methods and the demonstration of the hierarchy accordingto the order of different methods. It started with semantic interpretation, which alsodraws a line on interpretation of criminal law, followed by the systematicalinterpretation that eliminates the conflicts and cracks of semantic interpretation, thenwith the historical interpretation providing reference materials for semanticinterpretation and the teleological interpretation to claim the spirit of law.Nevertheless, such kind of hierarchy is not an absolute one. The aim of interpretationis to obtain a reasonable conclusion, so under the given premise any interpretationmethod which is sufficient to get a reasonable conclusion could have the priority.Now that some probabilities exits in legal discovery in addition to the competitionbetween different conclusions in criminal law interpretation, it is required to carrythrough a legal argumentation towards the conclusion of the interpretation, thediscovered norms of criminal law, or, in the other words, the norms of criminaljudgment consist of legal discoveries and interpretations, so as to obtain a certainappropriate norm of criminal judgment. During the legal argumentation, the methodapplied in the dialogue between prosecution, defendant and the judge, as asystematical arrangement mechanism, could provide each party with a stage for fullycommunication and competition, meanwhile, it also creates a rational procedure foreach party to debate, reach a consensus and accept the discontent. At last, the normsof criminal judgment obtained could not be regarded scientific and reasonable untilthey live through the questioning about their legality, rationality and equity. Onlythose norms of criminal judgment live up to the predictability for citizens with publicrecognition could guarantee the objectivity and fairness of the criminal judgment.