Criminal Law Interpretation Theory On The Functionalism

Criminal law interpretation is necessary.Criminal law interpretation requires a systematic approach,constructing a criminal law interpretation system with criminal theory system as the core.Because systemization helps to ensure the logical and stable interpretation of the conclusions,and ensuring the realization of the principle of legal justice.However,the criminal law interpretations that are dominated by systematic thinking and methods are closed,rigid and the danger deviating from social reality.Therefore,it is necessary to construct a scientific criminal law interpretation system based on social reality.Modern criminal law has traditionally separated criminal policy from criminal law system.Criminal law is considered an insurmountable boundary of criminal policy.Although this understanding is conducive to the stability of criminal law,it ignores the relationship between the criminal law system and its environment,and undermines the adaptability of criminal law.The criminal policy enters the criminal law system and the legalization construction of criminal policy are further thinking on the relationship between criminal law system and social demand.Nowadays,it has become a consensus that on the one hand,the criminal law system should not exclude the demands of criminal policies,and on the other hand,the impact of criminal policies on the criminal law system should be restricted.Therefore,the way to realize the legalization of criminal policy has become a new issue.The ideal path of legalization of criminal policy is the construction of criminal law interpretation system based on the function of criminal law.Functionalism interpretation of criminal law has the foundation of practice,methodology and legitimacy.It has the scientific and superiority of transcending formal/substantive interpretation and subjective/objective interpretation.The understanding of the function of criminal law is directly related to the construction of the functionalism interpretation of criminal law.Traditional theory of criminal law function has many disadvantages in logic and methodology,so it is not suitable to guide the construction of interpretation system of criminal law.Research on the function of criminal law should be based on scientific methods.The social system theory represented by Luhmann absorbs the latest scientific research results based on the traditional context of social theory,including system theory,cybernetics,informatics,biology,etc.So the social system theory is a model for interdisciplinary research.The social system theory is not only a scientific approach,but also in line with legalization of criminal policy proposition,so it should be used as the foundation of the methodology of studying the function of criminal law and the construction of functionalism criminal law interpretation system.According to the social system theory,modern society is a society with complex and contingent rapid growth.In order to reduce the complexity of social communication and maintain the sustainability of society,the society has undergone functional differentiation,and the social system has been divided into politics,economy,law and other subsystems.The functional differentiation theory of social systems itself presupposes the distinction between function/effect and the distinction between system/environment.The function of the system refers to some problems that the system needs to solve about social sustainability,and the problem can only be solved by the function.The system is not an input/output relationship with the environment,but a structural coupling relationship.The system is autopoiesis.On the one hand,the system realizes self-referential according to its own code and programme.On the other hand,the system is open to the environment through structural coupling.The relationship between the legal system and other social subsystems is independent and stimulating with each other.On the one hand,the legal system is closed,and the demand from the social environment cannot directly interfere with the operation of the legal system;on the other hand,there is a structural coupling relationship between the legal system and the social subsystems such as politics and economy.The needs of other social subsystems stimulate the legal system,which is selected to absorb into the legal system.According to the system/environment differentiation paradigm,the legal system is divided into legal subsystems such as constitutional system,administrative law system,criminal law system,and civil law system.On the one hand,the criminal law system has an independent and coupled relationship with the environment outside the legal system.On the other hand,it also has an independent and coupled relationship with the legal subsystems such as the civil law system.The function of the legal system is to stabilize the normative expectations of social interaction.The normal development of interpersonal relations is a prerequisite for the survival of a particular form of society.Thus,stable expectations are critical to the sustainability of society.There are two ways to stabilize expectations,one is to adjust cognition to form new expectations,and the other is to confirm the effectiveness of the expected,that is,to confirm the effectiveness of normative expectations.Modern society is a society with multiple values and functional differentiation.In such a society,only the law has the characteristics of consistency and generalization.Therefore,the function of the legal system is to stabilize normative expectations,and this function is irreplaceable by the moral system and the religious system.The criminal law is in the position of the guarantee law in the whole legal system.The function of the criminal law system is neither legal interest protection nor human rights protection nor behavior regulation,but confirms the validity of all legal norms including criminal law.Criminal law relies on penalty to confirm the validity of the law.Penalty is a kind of physical violence,which has the nature of consistency.It can effectively negative the behavior that undermines the effectiveness of the norm.The realization of the function of the legal system depends on the confirmation of the validity of the legal norms.The argumentative reasoning of functionalism interpretation of criminal law requires the use of interest measurement.Interest measurement is an important medium for the cognitive openness of the criminal law system.In order to ensure the independent functioning of the criminal law system,interest measurement is premised on legal texts and relies on a system for identifying crimes oriented to the function of confirmation norms.The construction of functionalism criminal law interpretation system requires the use of a systematic approach.The first thing is to construct a functional criminal theory system.Among the existing theoretical resources of criminal theory system,the teleology criminal theory system has the consistency with the functionalism interpretation of criminal law.Therefore,the convenient method is to modify the teleology criminal theory system with the guidance of the criminal law function.Interest is the connection point between the criminal law system and its environment.Social environment factors are absorbed by the criminal law system requires translation through the interest measurement.Firstly,it is necessary to identify the interests of the legal system.The interest identification is a process of choice,and the criteria chosen are guided by the function of the criminal law.The interests of social needs such as criminal policy are absorbed by the criminal law system through the translation of the concept of legal interest,and interests that are not part of the criminal law system should not be taken into account by interest measurement.Secondly,it is necessary to carry out specific measures of interest,that is,among the many legal interests,choose the interests that help to achieve legal function.The interests attributable to the criminal law system need to be divided and leveled,and the measurement between heterogeneous interests needs to be carried out under the consensus interests.Finally,The interest measurement should also follow the principle of proportionality.Constitutional interpretation can serve as a limitation on the measurement of interests.Functionalism interpretation of criminal law is scientific method,it can provide methodological support for specific legal application.For example,in the application of the interpretation of justifiable defense and violation of personal information,the functionalism criminal law interpretation reflects its superiority.The theories of justifiable defense principle is unconvincing.The theory of personal interest preservation can't stand alone.The theory of maintenance of law order is lack of theoretical foundation.The theory of interest measurement has many defects.The principle of justifiable defense should be explored in relation to the function of criminal law.The principle of justifiable defense should be the interest measurement guided by the confirmation of legal norms.The functionalism interpretation of the elements of justifiable defense based on the measurement of interests oriented by the confirmation of legal norms is a scientific method to precisely identify justifiable defense.The interpretation of the constituent elements of the crime of infringement of citizens' personal information should be combined with the provisions of the Civil Code,the Personal Information Protection Law and other predecessor laws,guided by the confirmation of legal norms function of the criminal law system,and taking into account the personal interests of the information subject and the interests of information circulation.The legal interest of the crime of infringing citizens' personal information is the right to personal information,and the right to personal information should be limited to the right to information self-determination,and in the new technological environment,it is appropriate to take the interests of social interaction of individuals as the core content of the right to information self-determination,while strengthening the information protection obligations of information processors.There is no need to limit the scope of personal information in criminal law,and the scope of personal information should be determined by the Civil Code and other predecessor laws."Violation of relevant state regulations" is the element of wrongfulness,and violation of "informed consent" is the core element for judging wrongfulness.In order to achieve a reasonable range of penalties in criminal law,the penalty range should be regulated by the uncertain legal concept of "severe circumstances".The rules for determining "informed consent" and the criteria for determining "severe circumstances" depend on the measurement of interests guided by the function of confirmation of legal norms.