On The Judge's Subject Status Of The Judicial Interpretation Of Criminal Law

It is very important thing about Chinese judicial innovation that establishes the judge's status in the interpretation of criminal law. Based on the analysis to the actuality of the subject of the judicial interpretation of criminal law, and combining Chinese situation and the law-theory of the interpretation of criminal law, this paper constructs the mode that the judge is the subject of the judicial interpretation of criminal law so that we can make it come true that the judge is"perfect"in the subject of the judicial interpretation of criminal law. This paper is divided into three parts concretely:The first part mainly is embarking from the present situation and put forward the question. It emphatically introduced our country criminal law explanation main body's actual condition. This part is divided into three parts :the first is, our country criminal law explanation main body present situation, in the legal stratification plane is "three Yuan level , National People's Congress leads" the criminal law explanation main body pattern; In the fact stratification plane ,it is "many Yuan multi-stage" criminal law explanation main body pattern. Therefore we may draw the conclusion: neither legal provision nor the fact, judges are not the Chinese criminal law explanation system legal explanation main body. The second is: the character of our country present criminal law explanation main pattern. By the analysis of our actuality, our subject pattern of the judicial interpretation of criminal law is natively characteristic, we could generalize it as"explained power and the jurisdiction detached","weak legislation explanation and more flourishing judicial explanation". The third is , the objection of our country present criminal law explanation main pattern. The author conclude it into four parts: the first is legislation explanation's emptily setting, the judicial interpretation has to the legislation explanation is built on stilts it to dislike; The next is the jurisdiction essence has invaded the legislative power, regardless of analysis from in the judicial interpretation content or analysis from in the judicial interpretation technology, the judicial interpretation already had surmounted the general legal explanation significance, in the essence was one kind of regulation criminal activity legislation, but certainly not merely was the judicial interpretation; The third is unitarily , being that subsidiary law system destroys corporal punishment, the detailed judiciary has made an explanation as if having produced new one corporal punishment outside the criminal code , real host law has lost the marketplace suitable for use on the contrary , the subsidiary law judiciary has made an explanation making principles widely known indeed , has had such detailed judiciary to make an explanation that subsidiary law existence , the criminal code unitarily certainly lose almost to the end; Be that the judge's corporal punishment power of interpretation is choked finally, large amount of judiciary makes an explanation having stifled judge conscious activity bringing into play , fetters and handcuffs the judge cuts amounts to law understanding and liberty. The judge does not have the space bringing into play regularly in corporal punishment power of interpretation crevice making an explanation in detailed judiciary that self enjoys.The second is analyzing the question, Ying Ran that has discussed our country corporal punishment making an explanation main body pattern chooses. This part includes two aspect mainly, one is to have built judge corporal punishment making an explanation the main body pattern, two is that the corporal punishment having expounded and proven a judge becoming our country explains the main body certainty. Corporal punishment explains a pattern for founding a judge , the legislature the author has been discussed should not be the main body that corporal punishment explains , two angles expound and prove from Standing Committee of the National People's Congress's function and the paradox "being entitled to make laws , being entitled to explain law right away"; Judicial authority not ought not to be the main body that corporal punishment explains , comments that comparatively much because assuming large amount of judiciary to Supreme People's Court making an explanation abuse previous article already have, here emphasizes the subject who has analyzed Supreme People's Procurator ate not ought to become corporal punishment making an explanation , the reason has two , one is the block of wood equity accusing organ and defendant of method; It's two , action are superintended an organ and organ block of wood equity is superintended. From above-mentioned demonstration, have established judge corporal punishment ultimately making an explanation the main body pattern; have been that "once basic multi-level dyadic court decision" corporal punishment explains the main body pattern. "One basic"is the judge who refers to judge law case. "Multiuse"refers to judge of all of the various levels people's court including grass-roots unit people's court, judge who is concrete all of the various levels people's court judge law case. The reason "why adjudging dyadic"court decision in referring to with criminal court decision explains interpretive content. Have established a judge. These two problems must make clear that, otherwise, this pattern I am afraid that difficult conduct accepts. In second problems, the judge the author has been discussed from two aspect becomes our country corporal punishment making an explanation the main body's certainty , that Judge one , owns the law power of interpretation is to realize the independence of the judicature prerequisite; It's two , corporal punishment make an explanation target calling a judge explaining corporal punishment.The third is solving the problem; Have structured judge corporal punishment making an explanation the main body the method that the pattern, idea and judge corporal punishment including that judge corporal punishment makes an explanation explains. In idea, the author has analyzed cause and content establishing judge corporal punishment making an explanation idea. Include human rights mainly ensuring idea with small side door teleology idea. That the corporal punishment having depended on method middle , brief have summed up over the past few years appearing explains method , emphasize and the analysis making an explanation to analogy and dilating to make an explanation differentiation composes further, has brought forward self viewpoint , been to change over leaving static state or the angle from development for differentiation exclusively first , second , been to have opened up third roads , adopt method of integration of development with static state to differentiation first , second but. This two kind is different as for development angle, than the activity; Explain if item have the core attribute making an explanation concept as for static state angle.The paper brings forward a problem in the light of, analyses problem, the train of thought solving a problem finally, unique main body having expounded and proven a judge ought to be that our country corporal punishment is interpretive, this is also ultimate actual judicial practice trend, is not to reach the goal in one step but, is related to because of the law explains the main body alteration and the judicial systems reformation is other. But we believe in, this one idea is sure to come true.