| The extensive interpretation in criminal law is a difficult problem in the theory of criminal law interpretation,and the interpreter will often expand the interpretation in different directions according to different values.In this way,the fair interpretation can not meet the practical needs of criminal law interpretation.A series of problems need to be further studied,such as whether to allow or prohibit the expansion of interpretation,whether the expansion of interpretation is bounded or unbounded,how to carry out the expansion of interpretation,and what rules should be followed in the expansion of interpretation.First,in the extensive interpretation of the position of the positive investigation.There is a dispute between the affirmative and negative interpretations of expansion;The paradox of "possible" and "impossible" of the possible meanings of words;There is a dispute between "metalinguistic" and "object language" from the perspective of existence in understanding the possible meanings of characters.On the subjectivity of extensive interpretation,there are disputes of "subjectivity","subjectivity" and "intersubjectivity".The first chapter is the basic position of extensive interpretation.From the positive discussion of extensive interpretation,the paper discusses various positions of extensive interpretation,and expands the dispute between "affirmation" and "Negation";the "possibility" and "impossible" paradox exist in the possible meaning of the text;the dispute between "meta language" and "object language" in the perspective of understanding the possible meaning of the text;the existence of "subjectivity" in the subjectivity of the expanded interpretation The dispute between the subject and the object and the subject.The positivism of allowing extensive interpretation belongs to general theory in Chinese and Japanese criminal law circles,but it has held the opposite position since Savini in German criminal law circle.So far,the general theory of extensive interpretation has been insisted on the negation of extensive interpretation in German criminal law circle.However,the German criminal law academic circles generally believe that the boundary of criminal law interpretation is the "possible meaning of words" in criminal law provisions,while the Chinese and Japanese criminal law circles generally believe that the boundary of expanded interpretation is the "possible meaning of words" in the criminal law provisions.Thus,the theory of expanding interpretation in the criminal law of China and Japan has certain relevance.For the possible meaning of the text,the "possibility" also means "impossible".The paradox ignores the process characteristics of the extended interpretation,which also benefits from the discovery of the general interpretation law of interpretation results to interpretation methods by hermeneutics philosophy,that is,the "possible meaning of text" has the legitimacy in the process of understanding as the interpretation result in the previous understanding But it does not mean that it must be the final chosen interpretation conclusion.There is also a dispute between "meta language" and "object language" in understanding the possible meaning of words.The former is the basis of "meaning theory",while the latter is the basis of "meaning theory".The former has the same cognitive structure as the "conformity,illegality and accountability of the constitutive elements" in the theory of crime,while the latter is equal to "illegality and responsibility".The perspective of metalanguage is more objective.There is no alternative relationship between the "inter subjectivity" and "subjectivity" of the interpretive subject.The former is only perfect for the latter development,while in the extensive interpretation,the subjectivity,subjectivity and Intersubjectivity of the subject are indispensable.The second chapter is the review of the theory of the boundary division of extended interpretation and analogy interpretation.From the perspective of the opposite side of the extensive interpretation and its relationship with analogy interpretation,there are "bounded" and "boundless" disputes in the opposition between the extensive interpretation and the analogy interpretation.The mainstream view of bounded theory is "fuzzy theory of boundary".The former is based on the principle of statutory punishment of crime and punishment,while the latter is based on the same nature as the extended interpretation.Some theorists can prove the theory of analogy interpretation by directly denying the principle of criminal law."Analogy interpretation prohibition" tends to "meaning theory" of "possible meaning of words",and holds that there is an implicit relationship between words in criminal law provisions and "possible meaning of words".While "analogy interpretation allows theory",it is suggested that the understanding of "possible meaning of words" originates from analogy rather than implication.The argument of "analogy interpretation permission" is Kaufman’s argument,but Kaufman’s analogy is based on the small premise of German judicial judgment logic.The expansion of Chinese criminal law aims at the words in criminal law provisions,which are fundamentally different in the object of interpretation;secondly,Kaufman does not recognize that analogy should exist in criminal law,but thinks analogy is a kind of recognition The way to know.Finally,analogy has the significance of finding the possible meaning of words.It exists in the extensive interpretation in the former rather than the conclusion of the previous understanding.Therefore,analogy has no direct relationship with the "possible meaning of the text".The problem of "analogy interpretation permission" lies in the above misunderstanding,the former being the former understanding of the nature of preliminary conclusion,the second is to confuse analogy,analogy interpretation and analogy application in terms of conceptual meaning,analogy is formal logic of cognition,analogy application is absolute legal continuation,while analogy interpretation is relative legal continuation,and there is no mutual relationship between them The same,also does not contain each other.The problems of "analogy interpretation prohibition" lie in three aspects: one is that a separate standard of "the possible meaning of words" does not catch the division of extensive interpretation and analogy interpretation,and it is necessary to establish a hierarchical method of demarcation;the second is the contradiction between "analogy interpretation prohibition" and "analogy interpretation which is favorable to the defendant",and the legal provisions of crime and punishment caused thereby The principle relativity aggravates this contradiction,but in fact,it is only a sugar shell that is allowed to explain analogy to the principle of legality of crime and punishment.Third,the impulse of "the prohibition of analogy interpretation" is to break through the "possible meaning of words" such as "the theory of substantive interpretation",which makes it more serious to the invasion of the legal principle of crime and punishment by analogy interpretation.The third chapter is the promotion of the method of expanding interpretation class,there are different "plane theory" and "stratum theory" in the methodology of extensive interpretation."Plane theory" holds that the extended interpretation is one of the theoretical interpretation methods,which competes with the eight interpretation methods,such as restriction interpretation and system interpretation,in one plane,and comes from the best.In such cases,the "possible meaning of words" in the expanded interpretation is a standard which is hard to support,and almost becomes a tool of purposeful expansion,and loses its independent character in the theory of criminal law interpretation.The method of distinguishing interpretation skills and reasons in "stratum theory" is wrong classification,incomplete method construction and rarely plays a role in practice.The first step of the normative extended interpretation class method is the "possible meaning of the text" as the interpretation technology.It obtains subjective "pre understanding" under the guidance of the former view and the completeness of the text.The location of the expanded interpretation here is one of three kinds of interpretation techniques.The second is the other three external sufficient reasons for the four root of "possible meaning of text" as the explanation reasons,which are the system form,historical motive force and normative purpose."The possible meaning of text" can only be "the meaning of text determination" with four reasons.After that,the process mission of expanding interpretation ends,and the possible meaning of text becomes the meaning of text determination.The fourth chapter is the first stage of the extensive interpretation method.At the technical level,the extensive interpretation technology produces the "possible meaning of the text",there is a dispute between "subjective theory" and "objective theory" of "the possible meaning of the text";the "possibility" standard of "possible meaning of the text" exists in the "similar theory","association theory","consensus theory" and "implicative theory";in the "word possible meaning" standard,the "word may" is different from "the word possible meaning";in the "word"theory,the "word may mean" is different from the "similar theory","association theory In the"possible" methodology of possible meaning,there is a dispute between "Jie Lu" of "ontological hermeneutics" and "long way" of "methodology hermeneutics".In the dispute between subjective theory and objective theory,subjective theory is lost in the way of psychologism epistemology.The method of understanding the original intention of legislation by understanding the inner motivation of legislators is not scientific,so it is criticized by objective theory.However,the objective interpretation method of "creativity" is not objective,and the original intention of subjective legislation has been "established" The law is clearly defined as the method of legal interpretation,and objectively speaking,it is more lonely.Subjective theory is objective,but objective is subjective.It should be based on the text of criminal law to construct the original meaning of legislation of legislators from the historical perspective.The "similar theory" in the "possible" standard of "possible meaning of words" means analogy interpretation;"association theory" is actually system interpretation;and "consensus theory" is between "similar theory" and "implicative theory" according to the degree of consistency.The only legal basis for the generation of "possible meaning of text" is the "implicative theory".The "possible"methodology of "possible meaning of words" and the methodological foundation of "Jielu" is ontological hermeneutics.Its intention is to understand it before and not through other direct ontology.This method is essentially connected with the perspective of "meaning theory" and"object language".However,it is likely to fall into a short circuit by "Jielu" to understand the purpose of ontology meaning ”.Therefore,it is not only ontology,but rather epistemology,and part of the incomplete epistemology."Long road" first demonstrates the "possibility","yes or no"in the possible meaning of the text through "pre understanding",and proves "should or not"through the explanation reason,and "long road" connects "real" and "should be".The fifth chapter is the second order of extensive interpretation,which is the criticism of the explanation reason and the proof of the reason.The principle of extensive interpretation includes the principle of universality in the theory of criminal law interpretation and the principle of sufficient reason of the special nature.The reason for the presentation of sufficient reason is that the reason is different from the sufficient reason(reason),which is of great importance to the "possible meaning of the text" as "the meaning determined by the text" or to be excluded.The reason of material in the principle of sufficient reason has been proved in the previous article because of the inclusion relationship between the possible meaning of the text and the meaning of the text.The reason of system form is the concrete form of the possible meaning of the text because it is the form of possible meaning of the text,which is the more accurate basis for the generation of the possible meaning of the text due to historical motive reasons;the reason of normative purpose is to clamp the relationship between the meaning of criminal law and the value construction of the code of conduct,so as to make the meaning of the text clear from many to little;the historical motive reason is more accurate for the formation of the possible meaning of the written evidence;the reason of normative purpose is to clamp down the relationship between the meaning of criminal law The possible meaning of words has changed from "yes and no" to "should be and not".Chapter six is the summary of the rules under the extended interpretation of stratum methodology.In this chapter,in the practice of expanding interpretation of stratum methodology and the expansion of the text in criminal law,this chapter clarifies three main rules of extensive interpretation: one is the rule of layer by layer restriction.In the second stage of extended interpretation,we should exclude metaphorical interpretation of metaphysics and fuzzy interpretation of meaning,and explain the meaning based on linguistics;in the second stage of extensive interpretation,it is proved that the possible meaning of text is proved by system exclusion,historical legislative original intention exclusion and behavioral norm purpose exclusion The meaning of a text or the possible meaning of an unreasonable text.Second,the same rules should be followed.Since the words in the same criminal code are interpreted,the possible meanings of different articles are different in quantity,but in quality,the same.Third,we should follow the rules of the unification of value.The purpose and form of legislative materials and criminal law provisions’ code of conduct are objective.However,in the choice of different words,there are different value directions.Through the interpretation of legislative materials and the maintenance of the value of the code of conduct,the author realizes the clear meaning of "possible meaning of words" to "the meaning of text confirmation". |
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