Position,Paradigm And Method Of Criminal Law Interpretation

This article starts from the fierce confrontation of criminal law's formal interpretation and substantive interpretation position,and clears up some controversial issues in the dispute of criminal law interpretation position.From the perspective of philosophical foundation,the legal philosophy behind the dispute between criminal law form and substantial interpretation position and the philosophical opposition of language was explained.On this basis,the author has discarded the dispute over the form and substantive interpretation of criminal law,creatively put forward the viewpoint of integrated interpretation of criminal law,and advocate any complete,reasonable and scientific interpretation of criminal law both are the result of the combined function of form and substance.Based on this position,the author has studied the thinking paradigm of the interpretation of criminal law,questioned the classic proposition of "prohibition of analogy in criminal law",clearly stated that the interpretation of criminal law is an analogous process,and summarized the specific steps of analogy in criminal law.In a nutshell,analogy in criminal law can be divided into three steps: the first step is to distinguish between interpretive analogy and continuation analogy with "possible word meaning" as the standard,delimiting the scope of allowable analogy and prohibited analogy,and the case can only be interpreted by analogy within the limits of the possible meaning of the provisions of the criminal law.The second step is to identify or confirm a standard or authoritativebase point or case.The third step is to compare the selected standard case or base point with the current case to be interpreted in the objective factual similarity and whether the similarity is equivalent from a certain value perspective,that is,whether the two are in an "important relationship" has a "comparable similarity".After researching the thinking paradigm of integrated interpretation of the criminal law,the author explores the methods of criminal law interpretation that guide and regulate the operation of the thinking paradigm,puts forward classification opinions on the interpretation methods of criminal law,examines various interpretation methods,and explains the order relationship between various interpretation methods is analyzed.In the process of writing the dissertation,the author always focuses on the practical application of criminal law,conducts in-depth research on related issues in combination with cases,and strives to reflect the vitality and value of the theory.This article first investigates and analyzes the school branch of the form and substantive interpretation position.It sorts out and summarizes the basic content of the contention of disputes,disputes,and typical case handling in the form and substantive interpretation position.Laid the foundation for the in-depth inspection.The author points out that it is no longer possible to examine where the theoretical confrontation of the standpoint of form and substance explained originated,but what is certain is that this theoretical confrontation form exists worldwide.In China,Professor Ruan Qilin was the first to discuss formal and substantive explanations.After more than ten years of debate,two counter-attack papers describing their respective interpretive positions published by Professor Chen Xingliang and Professor Zhang Mingkai in "China Law" in 2010,and the "View of Substantive Criminal Law" by Professor Liu Yanhong and "Critical Views on China's Substantive Criminal Law" by Professor Deng Zibin,pushed the dispute between formal and substantive hermeneutics to a climax.Subsequently,the author summarizes the focus of the dispute on form and substantive interpretation from four aspects: the order of the substantive judgment,the understanding of the normative nature of the criminal law,the choice of interpretation method preferences,and the handling of the relationship between criminal lawfunctions.The formal interpretation standpoint emphasizes that formal judgment should precede substantive judgment in the interpretation of criminal law.Criminal law norms are firstly norms of behavior,and more emphasis is placed on semantic interpretation.It is preferred to determine the meaning and scope of words through semantic interpretation.In addition,formal interpreters also clearly emphasize that the human rights protection function of criminal law should be superior to the social protection function.The substantive hermeneutics argues that it is the necessity and the limit of the interpreter's interpretation of the semantics that are necessary for the determination of the criminal law.The criminal law norms are first of all adjudicative norms,and more emphasis is placed on the interpretation of the purpose.Then,the author conducted an empirical investigation on the form and substantive interpretation of criminal law,and selected three typical cases that can fully reflect the conflict between the views of the two sides,including the understanding of “impersonation”,the interpretation of “destruction”,and the analysis of “bigamy”.A more intuitive examination of this argument from an empirical level.After investigating and analyzing the branches of the school of form and substantive interpretation,the author has cleared up some issues in the dispute over the interpretation of criminal law in our country,explained and discriminated the concepts related to form(substantive)interpretation,and explained the form and substantive interpretation.Misinterpretations and misreadings between positions were responded and clarified,and the connotation of the form and substance of the interpretation position was defined on this basis.The author first analyzed the concepts related to form(substance)interpretation,explained and clarified the relationship between form(substance)interpretation and form(substance)constituent elements,form(substance)judgment,and form(substance)criminal law.The discussion on the standpoint of formal explanation and substantive explanation laid the foundation.In addition,the author responded and clarified the misinterpretations and misunderstandings between form and substantive hermeneutics.These misinterpretations and misunderstandings include that formal hermeneutics opposes substantive judgment of the constituent elements,formal hermeneutics onlyemphasizes the formal side of the legal principle of criminal punishment,formal hermeneutics will criminalize acts without the need for punishment,and formal hermeneutics will cause evil.The rule of law and formal hermeneutics advocate a simple emphasis on limiting the scope of punishment.The substantive hermeneutics violates the statutory principle of criminal punishment by substituting acts that are not provided for in the form.Anti-logic flaws with methods.On this basis,the author distinguishes and analyzes the definitions of formal and substantive hermeneutics from different scholars,and defines and clarifies the connotations of formal and substantive hermeneutics.Because in the current research on the standpoint of the form and substantive interpretation of criminal law,scholars have mostly confined the issue to the level of criminal law.There has been no discussion of the standpoint of the standpoint of form and substantive interpretation from the philosophical foundation level,which has greatly limited the debate go deeper.Therefore,from the perspective of philosophical foundation,the author explained the opposition between the philosophy of law and the philosophy of language behind the dispute between the form of criminal law and the theory of substantive interpretation,and tried to analyze the source of the opposition between form and substantive hermeneutics from a deeper perspective.The author first explained the opposition of legal philosophy behind the dispute over the interpretation of criminal law in China.The writer points out that the formal interpreter advocates that when judging whether a case falls within the scope of the criminal law,one should adhere to the rule that formal judgement precedes substantive judgement,and not because of the substantive judgement of the facts of the case that affects the formal interpretation of the constituent elements.The substantive hermeneutics attaches importance to the explanation of purpose,and does not regard the process of legal interpretation as a logical derivation of syllogism,but achieves the correspondence between norms and facts by constantly looking forward to the norms and facts.The author believes that behind this opposition between form and substantive hermeneutics reflects the differences and oppositions on the major issue of legal philosophy in understanding the relationship between reality anddueness.The philosophical foundation behind formal hermeneutics is the dualism of fact and ought,and the corresponding legal philosophy school is positivist jurisprudence.The philosophical foundation behind the substantive hermeneutics is the fact that reality and should be equivalent,opposing and unified viewpoints,that "law as the correspondence between reality and should",and the corresponding legal philosophy schools include hermeneutics.Positivism jurisprudence is committed to objective legal concepts,value standards,episodic structural forms,and relatively closed system concepts,while interpretive jurisprudence is based on opposition to the above,and believes that "should" and "actually" are not Two distinctly separate fields,on the other hand,before the norms are “developed,” the two have been interconnected and related to each other,and the two must “adapt” to each other in thinking.Hermeneutics scholars differ from positivist law scholars in separating the meaning of the text from the understanding of the subject,because positivist law scholars want to determine the meaning of a text based only on general semantic rules.In contrast,scholars of hermeneutics think that understanding is the coexistence of subjectivity and objectivity.Understanding is not only formed passively from cognition,but needs to be actively created.In other words,when applying syllogism for epistemology,it is not just putting facts in the law.Then,regardless of the fact process,the law or fact must be understood in the relationship between people or between people and facts.Therefore,"the judge of a case must go back and forth between the legal norms(developed through normative schemes and normative fields)and the facts of the case(after individualization).The views of Professor Zhang Mingkai are the same as those of the above-mentioned hermeneutics school,which also shows the affinity between the substantive hermeneutics and hermeneutics scholars on the viewpoint of legal philosophy.Next,the author explains the philosophical opposition to language in the dispute over the interpretation of criminal law in China.The author believes that to further understand the truth of the opposition between form and substantive hermeneutics in the criminal law,it is necessary to trace the source to the linguistic philosophy behindit.By examining and summarizing the main issues of formal and substantive hermeneutics and analyzing the opposition between the legal and philosophical positions of the two,the linguistic and philosophical positions of the two can be categorized.Based formal hermeneutic position,while the other side is a substantive hermeneutic position based on linguistic hermeneutics(represented by Gadamer).The philosophy of linguistic analysis believes that what we can say should be those categories where experience can be used to identify true and false,that is,language is limited to a verifiable description of the world.In order to solve the language problem,we should start with the language used by the ordinary people in our daily lives and explore its meaning.Linguistic analysis philosophy is closely related to positivist jurisprudence.Early Wittgenstein believed that language or propositions must be verifiable,and provided strong evidence for the proposition that separation of law and morals was proposed by some scholars in positivist law.Secondly,Hart,a scholar of analysis,was inspired by Wittgenstein's discussion of "games",that is,general terms or belief that the cases referred to in a certain term must have the same essence,often the source of confusion.Therefore,He started from the use of the term "law" in everyday language,thinking about what the "concept of law" is.In addition,the philosophy of linguistic analysis has also greatly promoted the development of legal logic,and had a profound impact on the development of positivist law.Linguistic hermeneutics has had an important impact on the development of hermeneutics."Pre-understanding","Fusion of horizons",and "Hermeneutics cycle" together constitute the main content of linguistic hermeneutics.Linguistic hermeneutics points out that the interpretation of texts must come from real life and be influenced by previous understanding.Understanding is always expanding through the fusion of horizons,which also explains how the meaning of words in legal norms can be constantly re-understood,continuously expanding and enriching its content,and the "gap" between abstract law and actual life how to fill it up.Finally,according to the viewpoint of linguistic hermeneutics,the understanding of the text should be beyond the author's own.Therefore,hermeneutics advocates that when interpretingthe law,they should not stick to the intentions of legislators,but should seek to meet Objective,purposeful interpretation.In addition,it can be clearly seen that hermeneutics do not think that a proper solution to the problem can be obtained through purely logical reasoning,nor do they think that there is an ideal method to guide to the best interpretation conclusion It also reflects the significant difference between hermeneutics scholars and positivist law scholars under the influence of linguistic hermeneutics.After clarifying what the connotation of formal and substantive interpretation stands is,and after a more detailed analysis and explanation of the opposition between legal philosophy and linguistic philosophy behind the dispute between formal and substantive interpretation positions,the author further explains the position through formal and substantive interpretations.The shortcomings and deficiencies of this paper were investigated,and the position of the integrated interpretation of the criminal law was put forward.The interpretation of the integrated position of the criminal law and the two basic issues related to the integrated interpretation of the position were analyzed.The writer first examined and reflected on the form and substantive interpretation of criminal law,and on this basis explained and analyzed the significance of the integrated interpretation of criminal law and the connotation of the integrated interpretation.The author points out that the greatest advantage of formal hermeneutics lies in ensuring the certainty,objectivity and predictability of law,while the advantages of substantial hermeneutics lies in the substantive validity and purposefulness of conclusions.The two theories are diametrically opposed and have their own characteristics.However,it goes without saying that the two theories have aspects worthy of reflection both from the perspective of interpretation and from the perspective of specific methods of interpretation,including that the emphasis on one side of the interpretation position leads to imbalanced functions,and the vagueness of the interpretation method is not conducive to practical operation.Because there are shortcomings and defects in both purely formal and substantive hermeneutics,a more appropriate view should be to integrate the positions of the two,combining theadvantages and strengths of the two,while avoiding possible paranoia.Faults and imbalances.Taking the position of integration theory is the need to "correct" the neglect of statutory law authority in our traditional legal culture,and it is also a requirement to respond to the task facing China's current criminal rule of law.Based on this,the author puts forward the position of integrated interpretation of criminal law.The position of integrated interpretation of criminal law claims that in the process of criminal law interpretation,substantive interpretation is required to provide direction guidance and judgment standards.However,in practice,in the process of applying substantive interpretation and deducing legal meaning,the boundary of interpretation is constantly expanded At this time,it is necessary to ensure that the interpretation of criminal law is always on the track of the rule of law through the restriction of formal interpretation.Furthermore,any complete,reasonable and scientific interpretation of criminal law is the result of the combined function of form and substance,both of which are indispensable.In the integrated interpretation of the criminal law,the joint application of formal and substantive interpretations may lead to different interpretation conclusions.At this time,where should the interpretation conclusions be directed and how to choose the interpretation conclusions involves the interpretation of the interpretation perspective problem.Generally speaking,the direction of criminal law interpretation has two different aspects: subjective and objective interpretation.The choice of subjective and objective interpretation involves not only a question of pure method choice,but also a question of understanding the value of statutory law.It is a question of understanding the relationship between justices and legislators,justice and legal stability.The dispute between subjective and objective explanations has arisen in Germany in the second half of the 19 th century.At that time,subjective interpretations dominated,but today,subjective interpretations are few.In our country,there hasn't been any in-depth and systematic research on subjective and objective explanations in academic circles.The theoretical basis of subjective interpretation mainly includes law stability,legislative intent,and the principle of separation ofpowers.The theoretical basis of objective interpretation includes Hegel's objective spirit theory;the separation of the author from the work;the existence of legal loopholes.The shortcomings of subjective interpretation are that it is difficult to find the original intention of legislation,to some extent reflects the idea of ??governing people,and it is not compatible with social development.The disadvantages of objective interpretation are the derogation of legal certainty and the looseness of legal binding.In the process of law formulation,it is inevitable to reflect and reflect the subjective ideas,wills,or goals of legislators;it is also inevitable to include the objective things that legislators were unable to accurately understand due to various factors at the time of law formulation The law of development and change.If we want to have a correct understanding of the law,we must grasp the above subjective and objective factors.After researching the interpretation of the integrated interpretation of the criminal law,the author analyzes two issues closely related to the integrated interpretation of the criminal law.The first is the analysis of the positive solution to the interpretation of the conclusion from the integrated interpretation standpoint,that is,the question of whether there is a "only positive solution" to the interpretation of the criminal law from the integrated interpretation standpoint.The author starts with an analysis of two opposing viewpoints and gives reasons for agreeing with the negative viewpoint.First of all,the recognition of normative fields does not show credibility as mathematical sciences,and usually there is no single correct decision.Secondly,from the perspective of "incommensurability",it is pointed out that if judicial reasoning includes two incommensurable values,then it cannot be concluded that one judgment is better than all the alternative potential judgments.Finally,from the perspective of the characteristics of legal normative terms,it is pointed out that the legal normative terms can be divided into two categories: descriptive concepts and normative concepts.Even purely descriptive concepts,their marginal areas are normative.In other words,all the constituent elements are of a normative nature and need to be judged by value;and because the judgment of value cannot be examined scientifically,it is only an expression that the judge is personally confident and cannotbe observed and experimental To prove that the value judgment is neither universal nor necessary.Therefore,we can conclude that the legal interpretation will not have a "only positive solution".Then,the author demonstrated the need to establish a criminal law interpretation method in the case that there would not be a "only positive solution" to the legal interpretation.The author points out that the most important value of the interpretation method is to provide direction assistance.It can examine whether important points are omitted in the thinking process and can force the interpreter to explain the interpretation process.In this way,criminal law considerations are broken down according to different grounds and incorporated into a rational measurement model,which provides a basis for critical argument.Therefore,methodology is essential in handling cases.After putting forward the viewpoint of the integrated interpretation position of criminal law and analyzing the two aspects of the integrated interpretation position and the two basic issues related to the integrated interpretation position,the author then discussed the thinking paradigm of legal judgment formation under the integrated interpretation position of criminal law.In the past,the research on the application level of criminal law interpretation was basically limited to the method of criminal law interpretation.However,the thinking paradigm of criminal law interpretation is a more basic and prerequisite problem in the application of criminal law interpretation methods.The role of criminal law interpretation methods is to solve the thinking of criminal law interpretation.The specific judgment of several factors in the paradigm.The application of the criminal law interpretation method depends on the thinking paradigm of criminal law interpretation.There is no research on the criminal law interpretation thinking paradigm.The application of the criminal law interpretation method must be fragmented,and it must also lack systemicity and reliability..The author first introduces the criminal law inference,interpretation,interpretation,argumentation and other thinking tools from the perspective of integrated interpretation.Criminal law inference is the application of the sentenceconcept,logic and syllogism of the criminal law.It deals with the true value relationship between sentences rather than the content of the sentences,and solves the problem of formal correctness.The interpretation of criminal law solves the problem of correctness of content.The process of criminal law interpretation is the process of determining the meaning of legal normative words in combination with facts.The interpretation of the criminal law can be regarded as a step in the process of criminal law inference,which occurs before the question of whether the small premise can be "involved" in the large premise.Therefore,interpretation is the premise of allusions or inferences.The process of interpretation is a process of constantly looking back and forth between the major and minor premises.Analyzed from the development process and genealogy of hermeneutics,the criminal law hermeneutics and criminal law hermeneutics are at two different stages in the development of hermeneutics and have their own different substantive connotations.Criminal law hermeneutics belongs to the category of epistemology,while criminal hermeneutics is ontological.From the perspective of legal argumentation theory,legal argumentation mainly involves the justification of legal judgments.This kind of justification can be divided into two levels: internal justification and external justification.The most important thing in external justification is legal interpretation.Therefore,the method or form of legal interpretation is only one of the basis factors used to justify a judgment in a legal argument.Classical legal hermeneutics holds that the formation of legal judgment is a thinking process of formal logic or judicial syllogism.However,with the further development of legal hermeneutics,the above understanding of the formation of legal judgments is being challenged.Many scholars point out that it is incomplete to understand the formation of legal judgments only from the perspective of formal logic or judicial syllogism.Basically,interpretation is an analogous process.In the field of criminal law,the process of proposing and confirming an interpretation is of special significance.Because at present,the criminal law of most countries regards the principle of statutory punishment as a basic principle,and one of the important aspects is the prohibition of analogy.Therefore,on the one hand,"interpretation is aprocess of analogy",and on the other hand,the criminal law "prohibits analogy".What is wrong and right? The author analyzes and interprets the analogy thinking paradigm of the integrated interpretation of criminal law to solve the above problems.It is proposed that the interpretation of criminal law is an analogous thinking process,not to overturn the analogy prohibition principle,but to truly achieve the protection function of criminal law.In a nutshell,analogy in criminal law can be divided into three steps: the first step is to distinguish between interpretive analogy and continuation analogy with "possible word meaning" as the standard,delimiting the scope of allowable analogy and prohibited analogy,and The case can only be interpreted by analogy within the limits of the possible meaning of the provisions of the criminal law.The second step is to identify or confirm a standard or authoritative base point or case.The third step is to compare the selected standard case or base point with the current case to be interpreted in the objective factual similarity and whether the similarity is equivalent from a certain value perspective,that is,whether the two are in an "important relationship" has a "comparable similarity".It must be ensured that cases can be deduced by analogy within the possible boundaries of the criminal law provisions,which mainly involves the issue of the interpretation of criminal law.In Germany,the general interpretation of the limits of criminal law is the "possible word" theory.In addition,some scholars advocate "the sense of the majority of the people" or "natural meaning" as the limit of interpretation,and some scholars do not agree with "possible word meaning" as the limit of interpretation,and have proposed that analogies should be used in interpretation The limit should be "legal meaning" or "illegal type".Japanese academic explanations on the limits of the interpretation of criminal law are obviously influenced by German scholars.In its five main theories on the interpretations of the limits of criminal law,all of them can be seen in the shadow of the views of German scholars.The views of Chinese scholars on the interpretation of the boundary are basically the views that have been followed by the German theory.In common law countries,there is a so-called "common sense rule",that is,when interpreting criminal law,in principle,itshould be understood in accordance with the ordinary meaning of language and words,and it is not allowed to apply the law by analogy to laws that cannot be mastered Case.Because the interpretation itself is a process of analogy,furthermore,the general prohibition of analogy in criminal law is no longer an accurate proposition.Based on this,the author believes that in order to make the principle of analogy prohibition more clear in criminal law,two analogy concepts should be distinguished: one is the analogy prohibited by the traditional analogy prohibition principle,that is,to create new norms beyond the possible meaning of the law To apply a statute to a fact that a statute cannot itself contain.Another type of analogy is the "analogical approach" of jurisprudence in the interpretation.The former can be called continuation analogy,and the latter can be called interpretive analogy.Furthermore,the prohibition of analogy in criminal law prohibits only continuation analogy,not interpretive analogy.It should be noted that judging from the normative purpose and historical origin of the legal principle of criminal punishment,it does not preclude the application of analogies that are beneficial to the actor.Therefore,it is possible to allow continuation of analogy or analogy that is beneficial to the actor.In short,when applying the interpretive analogy method,since the explanation of the subordinate formula is within the range of possible meanings,then we can't think that it is illegal to use the analogy prohibition principle because this interpretation uses the analogy method.Therefore,even if the perpetrator is criminalized,that is,"an analogy that is not conducive to the perpetrator" is allowed.In the case where analogy applies,the "prohibition principle by analogy" in criminal law must be considered,and only the application of analogy in favor of the perpetrator is allowed.Regarding how to identify or confirm a standard basis point,the author believes that it can be solved by using semantic knowledge to determine the usual and core meaning of words.The author introduces the theory of "fuzziness" in semantics and points out that the fuzziness of semantic systems actually opens up a "space of activity" for the language we use.There are two semantic construction models for this activity space.One is a two-region model.In this model,"fuzziness" is a concept ofspace with uncertain extensions in the literal sense composed of core concepts and edge concepts.The other is a three-region model.The model divides the use of words into three areas: positive objects,negative objects,and neutral objects.According to the studies of foreign scholars,there are generally three methods for acquiring the usual meanings of words in legal norms: one is the judge 's own sense of language or his own linguistic knowledge;the other is by querying the dictionary;the third is obtained by the above two methods When core areas are in dispute,they are further determined through corpus tools.Among them,the judge's own sense of language is only the starting point.Because it contains strong subjectivity,it needs to be objectively evaluated and judged by the second and third methods.If the core scope of the meaning of words determined by the first two steps of criminal law analogy cannot cover disputed facts or behaviors,and it is concluded that disputed facts or behaviors are in the ambiguous area of ??word meanings,then the third step must be performed.In other words,the third step of analogy in criminal law is mainly to determine whether the behavior in the vague area and the behavior in the core area have the conditions necessary for analogy to apply: that is,"important relationships" has a "can be compared Similarities" The so-called "important relationship" is what Kaufman calls "comparison points",and the choice of "comparison points" is a "purpose process",because it is not the dead words stipulated by the law,but the legal meaning,the law spirit.In the United States,judging whether the provisions of criminal law are vague and to the extent that they need to be declared invalid due to ambiguity and interpreting the provisions of criminal law are two different types of interconnected behaviors,and unified rules apply to both.That is,first determine whether the ambiguous or unexplained criminal law provisions violate the requirements of due process,fail to provide appropriate notice to citizens,and therefore may lead to judicial prejudice and legal discrimination.If the vague or unexplained criminal law provisions do have the above risks,then a more balanced process must be entered,that is,whether the corresponding application of the ambiguous criminal law provisions or the criminal law provisions to be interpreted is to achieve the purpose ofthe criminal law provisions It must be and is so applied or explained whether it will produce the result of inhibiting the implementation of proper behavior,that is,the judgment of nec...