On The Functionalism Criminal Law Theory

The functionalism criminal theory is an important theory school of criminal law in postwar Japan, which was first put forward by famous criminologist Hirano Ryuuichi. Hirano criticizes the conditions of paying attention to ethics, focusing on the system construction and emphasizing on the form side of legal principle of crime and punishment in the early post-war Japanese criminal law. However, he points out that criminal law should pay more attention to the protection of individual's benefits and legal interest, change their thinking methods from the systematic thinking to the problem and meanwhile, emphasize more on the substantive side of legal principle of crime and punishment to make substantive interpretation of criminal law according to the new development of constitution making after the war. From the point of view, Hirano makes further efforts to develop the functionalism theory of criminal law, coming up with several opinions, such as Erfolgsunwert Theory, the crime with the non-crime in the amendment of criminal law, the functionalized substitutability of criminal law, the modesty of criminal law, national participation injustice, etc. The functionalism criminal theory has a significant impact on the criminal legislation and judicature in Japan afterward.In the aspect of legislation, Hirano uses the law interest doctrine and the responsibility doctrine in the functionalism criminal theory law doctrine as the argument, strongly criticized "The Draft of Amendment to the Penal Code", publishing by the Japanese government in1974with conservative color,and finally stopped the draft to the legislative process; in the aspect of justice, Hirano uses the national participation in justice theory as the argument, in order to criticize the bureaucratic criticism of Japan the criminal judicial organs. He advocates the implementing of assessor system to open the national participation in justice.Most of Hirano's opinions were adopted by Juror Law, which was passed in2004. This has played an important role in promoting the birth of the referee system.The functionalism criminal theory of Hirano has deeply impressed by the functionalism sociology and legal realism in the U.S. and scholastic theories of law in Japan."Study on the function of criminal law "advocated by the functionalism criminal theory is derived from the Merton's functional analysis approach, while the judge's decision action theory is based on Parsons's theory of social action model; the judicial reform and judicial function in the functionalism criminal theory are deeply influenced by Legal Realism Thought developed by Llewellyn and Frank; at the same time, several opinions in the functionalism criminal theory,which criticize traditional criminal law's non modernity, pay attention to citizen's legal consciousness, and also claims that the criminal theory should take prediction and influence of judicial decisions for tasks,are the result of scholastic theories of law extending to the field of criminal law.The functionalism criminal theory proposed by Hirano, had a profound impact on the Japanese criminal law. It also has been inherited and carried forward by a huge number of scholars. The most influential includes the sociology of criminal law advocated by Tokoro Kazuhiko, the substantive crime theory advocated by Maeda Masahide and the new functionalism criminal law theory advocated by Matsuzawa Shin. These achievements indicate the developing trend of the functionalism criminal theory in80,90's of20century, even21century. It also shows that the functionalism criminal theory still has fresh vitality in the new era,60years from the first publishing date.The functionalism criminal theory also experienced refuting and criticism in Japan. It has strengths as well as weaknesses, which should be objective evaluated. The advantages are worth to use for reference of criminal law in china. In the criminal law hermeneutic, the substantive crime theory in the functionalism criminal theory has some inspiring significance on our research on form hermeneutic and substance hermeneutic; in the aspect of legal sources, along with China's establishment of the case directing system, directing case has also became the sources of the criminal law. The case legislative function theory advocated by the functionalism criminal theory as well as Japanese legal precedent system, which has influenced by this theory, would be helpful to improve our country's case directing system; in the aspect of criminal judicial reform, expanding the ways for the masses to participate in the administration of justice has become the direction of judicial reform. Citizen participation in judicial, which has being deeply influenced by this theory, can provide very useful reference for our country to reform and improve the people's juror system.The dispute between the form hermeneutic and the substantive hermeneutic of the criminal law is largely affected by the fighting between the form of crime theory and the essence theory of crime in Japanese criminal law. The dispute between the form hermeneutic and the substance hermeneutic contains many misunderstandings, however, the difference between them has been exaggerated. From the practice of the hermeneutic of criminal law, there is no need to insist on a single hermeneutical position. A non-default, problem oriented thinking and limited utility doctrine concept of hermeneutic of criminal law should be advocated.Our country has initially established the case directing system, but we still lack the practical operation. We can consider the Japanese precedent system to clarify several problems, for instance, the binding part in the directing case, the quoting way in the written judgment, binding force of reference, procedure of changing, and the relationships with legal theory, etc.Our people's juror system has a strong comparability with Japanese juror system. However, the implementation of Japanese juror system is relatively successful, while the implementation results are not obvious since people's juror system does not perform very well in the protection of jurors' right. We can use for reference the experience of Japanese juror system. Under current people's juror system framework, we could around strengthen the people's jury independence to explore ways of reforming.