Research On The Status Of The Source Of Law For The Judicial Interpretation Of Criminal Law

The judicial interpretation is a problem with typical Chinese characteristics.The abstract judicial interpretation made by the Supreme People?s court has the characteristics of legislation.Scholars have not agreed on whether judicial interpretation is the source of the law.The jurisprudential circle has different attitudes to whether the judicial interpretation is the source of the law.The civil law circle generally affirms the judicial interpretation of the civil law as one of the sources of law,while the criminal law generally negates the status of the source of law for the judicial interpretation of the criminal law.As to whether the judicial interpretation of criminal law has the status of the source of the law,it is necessary to carry out in-depth theoretical analysis.The number of judicial interpretations of criminal law is very large,and its forms of expression are also varied.The judicial interpretation of criminal law is different from the judicial interpretation of civil law.In the field of criminal law,the principle of a legally prescribed punishment for a specified crime is the basic principle of criminal law.When we interpret the criminal law,we must not create any law arbitrarily,we cannot explain it by analogy,and we cannot take the customary law as the direct basis of judgement.Therefore,the status of the source of law for the judicial interpretation of criminal law can not be fully justified by the grounds of justification for the judicial interpretation of civil law.To clarify whether the judicial interpretation of criminal law has the attribute of legal source,we must first analyze the concept of legal source,the relationship between legal source and law,and the criteria for judging the source of law.In the first place,the formal source is mainly the source of the law.The concept of the source of the law is polysemous,it is possible to include all the meanings of the source of law by dividing the source of law into form and substance.The source of law generally refers to the form of the source of law.Within the form of the source of law,the source of law can be divided into formal source and informal source.The formal source itself is the law,which is the true source of the law.Therefore,the source of the law is the law itself,and the source of the criminal law itself is the criminal law.In the second place,the standard of judging the source of the law and the standard of the judgment of the law are consistent.In the criminal field,only the authoritative reason that serves as the basis of the referee is the source of the criminal law.The source of criminal law belongs to the practical authority,and it plays the role of authoritative reason in the judicature.Since the source of the law is the law itself,the standard of judging the source of the law and the standard of the judgment of the law are consistent.Finally,there are up to three criteria for judging the source of law.Legal positivism thinks that the law contains two factors,namely social efficacy and authority of the formulation(validity);however,the theory of natural law thinks that the law contains three factors,namely social efficacy and authority of the formulation(validity)and correct content(legitimacy).Therefore,there are two criteria for judging the legal source for legal positivism,that is,efficacy and validity,while the criterion of legal source for natural law is three,namely efficacy,validity and legitimacy.In any case,a norm must satisfy the criteria of efficacy and validity,if it want to get the qualification of the source of law.If it can satisfy three criteria at the same time,it will get the most sufficient qualification of legal source.Therefore,we can study on the legal status of the judicial interpretation of criminal law in three dimensions.Firstly,from the perspective of efficacy,the judicial interpretation of criminal law plays a direct role as a referee in judicial practice,and it plays an authoritative role in the referee.The judicial interpretation of criminal law is widely applied by the judges,and has very strong actual effect.Therefore,from the perspective of efficacy,the judicial interpretation of criminal law plays the role of the source of the law.Secondly,from the perspective of validity,the judicial interpretation of criminal law has certain legal basis,but there are conflicts between these legal grounds,which are also contrary to the provisions of the constitution.The order of validity of judicial interpretation of criminal law can not be determined.The judicial interpretation of criminal law has binding force in practice,but its binding force lacks effective basis in law.The validity of criminal judicial interpretation can not be guaranteed in the legal system.Therefore,from the perspective of validity,the judicial interpretation of criminal law is not the source of the criminal law.Thirdly,from the angle of legitimacy,there is a serious conflict between the judicial interpretation of criminal law and the principle of legality.The judicial interpretation of criminal law,in essence,has the property of legislation,which violates the legislative power of the legislature.The judicial interpretation of criminal law also conflicts with the judge?s right of legal interpretation and the right of discretion.Therefore,from the perspective of legitimacy,the judicial interpretation of criminal law is not the source of the criminal law.The judicial interpretation of criminal law does not have the property of law and does not have the qualification of the source of the law.The judicial interpretation of criminal law is therefore not the source of the criminal law.The judicial interpretation of criminal law has mandatory binding force,making it virtually opaque in similar laws,and it has actually become the practical authority,so that courts at all levels must apply it.When the judicial interpretation of the criminal law has problems,it may lead to the lower court to apply the wrong judicial interpretation of the criminal law,which leads to the occurrence of the wrong case.However,there is no legal responsibility for the mistakes of the judicial interpretation of the criminal law.It should be the direction of judicial interpretation of criminal law to make the judicial interpretation of criminal law change from mandatory to only reference.Although the judicial interpretation of criminal law has a de facto binding force,the judicial interpretation of criminal law has serious problems in both validity and legitimacy.When talking about the source of the criminal law,the judicial interpretation of criminal law should not be regarded as the source of the criminal law.The de facto authority can not be regarded as the legitimate authority,nor can the binding force in fact be regarded as a normative binding force.The judicial interpretation of criminal law plays an important role in the judicial referee,and plays the role of the source of law.However,the judicial interpretation of criminal law should return to the original appearance of theoretical authority,which only serves as a substantive reason in judicial decisions,and it should only be persuasive.Under the current judicial environment,we should vigorously develop the guiding case system,weaken the status of the abstract criminal law judicial interpretation,and protect the judge?s power to break the judicial interpretation.In criminal justice procedure,judges should be encouraged to deviate from unreasonable judicial interpretations of criminal law in accordance with substantive reasons in order to enhance the correctness of the referees.The judicial interpretation of criminal law is less effective than the law,so it is necessary to guarantee the judges? power to break the judicial interpretation of criminal law.When the judicial interpretation of the criminal law is not reasonable,the judge can refuse to apply it,so as to break through the provisions of the judicial interpretation of the criminal law.The breakthroughs in the judicial interpretation of criminal law should be based on the principle of the defendant,so as to make the result of the referee better conform to the objective meaning of the criminal law.