| Although the concept of "criminal circle" is well known to people,there are different opinions on "criminal circle" in academic circles,and the object of judgment is also vague.There are many different opinions about the "criminal circle" and its theory,which originate from the different starting points and positions of legislation and judicature.Criminal law is the law prescribing crime and penalty.Conviction and sentencing are two major problems in criminal justice practice.On the premise of dividing the concept of "legislative" judicial circle from that of "judicial" criminal circle,it is helpful to study the current situation of delimiting the boundary between conviction and non-crime in criminal justice,that is,the actual scope of "judicial criminal circle".The formation of "Judicial Criminal Circle" is not only a question of how to determine the meaning of criminal law provisions in individual cases,but also a question of how to balance the protection of legal interests and the protection of human rights in criminal law and how to reasonably distinguish between crime and non-crime on the basis of existing provisions.Therefore,in recent years,under the upsurge of "legislative proposals" for the establishment of new crimes in criminal law,people’s doubts and conjectures about "different judgments on the same case" in all kinds of judicial cases,and the criticism of "legislative vacancy" and "symbolic legislation" in some amendments to criminal law in academic circles,it is helpful to study the formation mechanism of criminal circle in criminal justice.How should criminal justice achieve the ultimate goal of fairer,fair,efficient and more conducive to the realization of criminal law objectives?This paper comprehensively uses the methods of comparison,empirical analysis,economic analysis,value analysis,game theory and so on,and develops orderly around the core concept of "judicial criminal circle".Firstly,it divides the legal crime circle and the judicial crime circle,clarifies the difference and connection between them,in order to correct the real object of study of the article;secondly,it analyses the constituent elements and forming principles of the judicial crime circle,in order to clarify the research path of combining theory with practice;secondly,it takes the legislative crime circle as the actual reference,and through the three-dimensional dissection of the judicial crime circle,from different judicial circles.The different understanding of the constitution of crime,the differentinterpretation of criminal law,the different understanding of criminal policy and the different application of criminal laws and regulations show the formation process and concrete form of the judicial criminal circle dynamically.In addition to the introduction and thanks,this article is divided into six chapters,each chapter in a progressive way,gradually unfolding the form and characteristics of the crime circle at all levels.The introduction aims to give a prompt explanation of the reasons and significance of the topic selection,literature review,research methods,research positions and innovations.Chapter one,the controversy and doubts of the judicial criminal circle.As far as any concept is concerned,its definition and scope must be clearly defined.There are different understandings of the concept of criminal circle itself in the academic circles,which come from different understandings of the category of criminal circle.The concept of crime itself is complex and contains multiple value elements of criminal justice.As the boundary between crime and non-crime in criminal law,the criminal circle is a flexible concept with both substantive and procedural standards of criminal law.This chapter combs the different viewpoints and disputes about the criminal circle,that is,the research on the "criminal circle" in our criminal law and society is confused,so that we lack an accurate understanding of the criminal circle itself,which also causes the academic circles to be entangled about the rationality of the criminal circle,the appropriateness of the revision of criminal law,the appropriateness of the scope of punishment and so on,but no one can convince us.One of the important reasons for each other.To solve the problem of "affirmative theory" and "negative theory" about the appropriateness of the size of the criminal circle in academic circles,we should start from the essence of the study,not only should we study the criminal circle in the same field,but also should judge it with the same reference.Chapter two,the concept of the judicial criminal circle.The purpose of this chapter is to respond to the current situation: that is to say,the academia’s understanding and understanding of the criminal circle confuses the concepts of "legislative criminal circle" and "judicial criminal circle".The former is the aggregation of crimes stipulated in criminal law articles,refers to the natural criminal circle constituted by the criminal law which is determined by statutory law,and the latter is the crime determined by criminal judgment.The aggregation constituted is the real criminal circle.Judicial crime circle has independent significance.It not only reflects the judiciary’s understanding of the constitution of crime,criminal policy and the application of criminal legal tools through the application of criminal law,but also reflects theprocess and result of the judiciary’s subjective and active determination of criminal punishable anti-social behavior under the principle of legality of crime and punishment,and adjusts and adjusts the criminal law.Balance the conflicts among the interests of the state,society and individuals.This reflects the difference and connection between the legislative criminal circle and the judicial criminal circle: the legislative criminal circle is the boundary between the crime and non-crime declared by the criminal law,and the judicial criminal circle is the boundary between the crime and non-crime determined by the criminal justice.They are not completely coincident.The legislated criminal circle and the actual judicial criminal circle can be used as reference and contrast.Chapter three,the formation mode、operation elements and fuction of the judicial crime circle.If the first and second chapters have determined the significance of the study,the comparative sample and the specific content of the research object,then,on the one hand,starting from the internal research object,namely the judicial criminal circle,and from the basis of the formation of the judicial criminal circle,namely the judicial conviction,this chapter explains that the openness of criminal legislation makes the judicial criminal circle have moderate flexibility,and the limitation of criminal law principles is judicial crime.On this basis,as a way to adjust the "grey zone" between crime and non-crime,the judicial delinquency and conviction reasonably adjust the reasonable scope of criminal law intervention in social life.That is to say,judicial criminalization and non-criminalization are the normal process of criminal justice evaluation of anti-social behavior.On the other hand,the concentrated manifestation of the crime of judicial access lies in the handling of suspected cases.Judicial offence is embodied in the implementation of the substantive or relative principle of the most legally prescribed law,the reasons for super-legal obstruction in judicial interpretation,and the flexible handling of some criminal cases.Judicial conviction is embodied in the analogical interpretation in judicial interpretation and the inevitable misjudgment in practice.As no criminal legal system or regulation will play a role in a vacuum,although the legislation stipulates the types of crimes and determines the roughly scale of the judicial criminal circle,for the judicial criminal circle in its actual state,all elements,including the knowledge of the judicial subject,the actual impact of criminal policy,social factors and procedural rules,will shape the judicial criminal circle.And scope has played a substantial role in the operation of the judicial criminal circle is an important element.The study of the judicial criminal circle and its generating mechanism can theoretically reflectthe relationship of mutual reference and influence between the legislative criminal circle and the judicial criminal circle.In the field of judicial game,the judicial criminal circle,through the dynamic game of the judicial subject’s choice of criminal value,balance of interests and coordination of relations,highlights the precise regulation of criminal law on social relations.In the game principle of balance between crime and punishment,the relationship between interpretation and application of criminal law is shown.At the practical level,the judicial criminal circle embodies the concrete process and principle of judicial coordinated operation.Through the coordinated operation of the judiciary,we can not only mend the legislative defects to a certain extent,make the judicial trial-and-error mechanism more integrated,but also reflect the actual needs and direction of the modernization reform of criminal law in a direct and vivid way,so that the criminal law can constantly achieve self-improvement to adapt to the changing social life.Chapter four,the operation of the judicial criminal circle in the investigation stage.Through the systematic analysis of the first two chapters,we have a comprehensive understanding of the form,structure and basic composition of the judicial criminal circle.Any case that may enter the circle of judicial crime must be screened through the successive steps of litigation,and there are different degrees and ways of judicial exit and conviction in each link.Judicial crime circle has different influence on judicial crime circle through different understanding and application of criminal norms,because different judicial subjects have different understanding of the constitution of crime in different links of criminal procedure.Through statistics and analysis of real data of public security organs dealing with economic crime cases in C city of S province in recent five years and modelling analysis of game theory,this chapter shows that the investigation organs usually adopt the method of formal interpretation under the concept of social-based criminal law,the method of non-systematic interpretation under the national-based criminal policy,and the method of purpose interpretation under the expectation of judicial benefits,so that the investigation organs usually adopt the method of formal interpretation under the concept of social-based criminal law.The understanding of conviction under the limitation of procedural rules,the understanding and application of criminal law under the influence of criminal policy,and the tendency of judicial conviction under the concept of social-based criminal law.Chapter five,the operation of the judicial criminal circle in the stage of public prosecution.In view of the comprehensive consideration of the legal and social effects and theprotection of the legitimate rights of criminal suspects,the public prosecution organs have,to a certain extent,rectified the scope of possible criminal acts.This chapter takes the game theory law and economics as the analysis tool,demonstrates that the pro-curatorial organs can change the accusation prosecution by examining the cases of non-prosecution and pleading guilty and leniently dealing with them,which is embodied in the criminal punish-ability through the substantive interpretation under the utilitarian criminal law position and the inverted reasoning mode,under the consideration of the value of criminal law,the consideration of the penalty function and the consideration of the utilitarian criminal law position.Judicial delinquency under sexual review,special judicial delinquency under criminal policy,and special procedural delinquency in suspected cases.Chapter six,the finalization of the judicial crime circle in the trial stage.Judicial organs have a final effect on the determination and judgment of cases,and delimit the scope of the judicial criminal circle.On the whole,the unified application of conviction standards through "two high" judicial interpretation,guiding case interpretation and local interpretation at all levels in the multi-level interpretation system of criminal justice in our country stabilizes the form and scope of the judicial criminal circle to a great extent;and under the comprehensive consideration of the functions of criminal law,the judicial organs can also apply the substantive interpretation of criminal law through individual cases,especially in the case of punishment.On the premise of temporary absence of matter legislation,the specific interpretation and application of blank charges,as well as the judicial supplement of the Criminal Code,can individually adjust the treatment of individual crime and non-crime.In this process,due to the influence of special criminal policy,social changes,technological development and technological lag,it may affect the understanding and understanding of the constitution of crime by the judicial organs.It is necessary for the judicial organs to interpret and apply the criminal law through the balanced balance of crime and punishment,and to interpret the criminal law through the system in the increasingly complex legal system of modern society ruled by law.The applicable interpretation methods of criminal law,such as consultative interpretation with public participation,adjust the boundary between crime and non-crime wisely and reasonably.The conclusion aims to briefly review the process and mechanism of the formation of the judicial criminal circle,and finally return to the relationship between the judicial criminal circle and the legislative criminal circle.It summarizes the principles of judicial game in theprocess of the formation of the judicial criminal circle and the root causes of their respective problems,and emphasizes the essence of the formation mechanism of the judicial criminal circle. |
