On The Subject Of Interpretation Of Current Criminal Law Of China

The process of applying the Criminal Law is the process of explaining the Criminal Law, the importance of the interpretation of the Criminal Law is self-evident. The subject of the interpretation of Criminal Law is the initiator and sponsor of the interpretation of the Criminal Law, it is very important to the theory of interpretation of the Criminal Law and the judicial practice. To begin with the description of the current situation of subject of the interpretation of Criminal Law, author tries to analysis the questions about the current situation, and to conceive the status that the subject of the interpretation of Criminal Law ought to be. The article consists of three parts:The first part is the description of the current situation of subject of the interpretation of Criminal Law.The legislative interpretation of Criminal Law means the effective interpretation of the Criminal Law by the legislative organ. In our country, the legislative organs include the National People's Congress and the Standing Committee of the National People's Congress, as one of them, the Standing Committee of the National People's Congress has the right to interpret the law legally, it is the legal subject of the interpretation of the Criminal Law. Although there are some scholars who believe that the National People's Congress still has the right to interpret the Criminal Law in specific occasions, author believes that this will confuse the scope between legislation of Criminal Law and the interpretation of Criminal Law, it is illogical. Meanwhile, in recent years, the commission of legislative affairs of the Standing Committee of the National People's Congress has interpreted the Criminal Law in the urgently situation in the form of reply, however, as an integral part of the Standing Committee of the National People's Congress, it can not exceed the overall function of the Standing Committee of the National People's Congress and be the subject of the legislative interpretation of Criminal Law.From the different perspective for understanding and mastering, scholars have come to the conclusion quite inconsistent when it mentioned the connotation and extension of the subject of the Judicial Interpretation of Criminal Law. And the main unit can be divided into two different perspectives in main: the doctrine of multiple subject and the doctrine of one core subject. But in the practice, except the two authorized subjects——the Supreme People's Court and the Supreme People's Procuratorate, many unauthorized subjects have been involved in the interpretation of the Criminal Law, that made the inherent contradictions protrude more clearly, and seriously prejudice the to the uniform application of the law.And either before or after the modification of Criminal Law, because of the main activities of the informal interpretation and conclusions have no legal effects, and its occasions, and the key is not directly aimed at the application of the Criminal Law, there's no restrictions of the subject of the informal interpretation of Criminal Law, contrary to the subject of formal interpretation of Criminal Law, the subject of informal interpretation of criminal hadn't been explained adequately and deeply.The second part is to analysis the current situation of subject of the interpretation of Criminal Law.Although the interpretation of the current criminal is very effective, the problems have become increasingly prominent. There exists inharmonic situation between the legislative and judicial interpretation of Criminal Law, this is caused not only by the factors in law system, but also by their own problem. subject of formal interpretation of Criminal Law——subject of the Judicial Interpretation of Criminal Law is too weak,the subject of the Judicial Interpretation of Criminal Law is too active. On one hand, when the boundaries of Criminal Law need further defined, the Standing Committee of the National People's Congress always did nothing, when the judicial interpretation of The Supreme People's Court and Supreme People's Procuratorate is different in the principle, or the jurisdiction encroached on legislation, Standing Committee of the National People's Congress still did nothing. On the other hand, the subject of the Judicial Interpretation of Criminal Law is too active, to violate the Legislative intent, or made conflicting judicial interpretations, or has a tendency to expand too much, even has a tendency to legislation, all these enforced of the legal confusion and the lackness of co-ordination. There are two main reasons for this, the reason of their own, and the legally institutional reasons. The subjective sense of the Standing Committee of the National People's Congress is too passive, and the highest judicial organ, on the contrary, is too Initiative. Meanwhile, the formation mechanism and monitoring measures are all incomplete, the legal system is not perfect enough either.Not only there exists inharmonic situation between the legislative and judicial interpretation of Criminal Law, but also the two subjects of the system had conflictions. Either before or after the modification of Criminal Law, there're many conflictions between them. It can be predicted that the conflictions won't disappeared in the same condition. Author believes that, Supreme People's Procuratorate shouldn't be the subject of judicial interpretation of Criminal Law. From the perspective of functions of procurator organs: Indictment, part of the investigation and legal supervision, these terms should not be as the basis for the Supreme People's Procuratorate. And what's more, if the procuratorial organ has the right to interpret the Criminal Law, it may result in two pairs of unequal situation in the judicial practice. When the procuratorial organ officiate the functions of public prosecution, it is unequal to the defense. When the procuratorial organ officiate the functions of legal supervision, it is unequal to the organ that is superintended. The Supreme People's Court has the power to interpret Criminal Law, but because of the level of trial magistrate and competence, it rarely trail concrete cases, on the contrary, the magistrate who trail the concrete cases dose not have the power to interpret the law. Author thinks that, since legislators could not be able to formulate a set of the Criminal Law that needn't to explain, the purpose of interpretation of Criminal Law is to make the abstract concrete case fit for the provisions of the Criminal Law, this kind of work can only be borne by the court, and the power of interpreting the law must be officiated by the Judge.Because of the current system of interpretation of Criminal Law and the character of its own, the subject of informal interpretation of Criminal Law has been paid barely any attention. However, in the view of Criminal Law, informal interpretation of Criminal Law is connected so closely to the formal interpretation of Criminal Law that they shouldn't be considered separately. So the subject of informal interpretation of Criminal Law should be paid more attention.The third part is the discussion of what the subject of interpretation of Criminal Law ought to be.Faced of the problems of subject of interpretation of Criminal Law, author suggests that, quash the qualification of the subject of legislative interpretation of Criminal Law, and the Supreme People's Procuratorate as the subject of the Judicial Interpretation of Criminal Law. Establish the type of one core-individual-judgment for the subject of formal interpretation of Criminal Law, let the Judge be the only subject. the subject of academic interpretation of Criminal Law in traditional sense should be separated into two parts: the subject of academic interpretation of Criminal Law and the subject of random interpretation of Criminal Law. The subject of informal interpretation of Criminal Law has very important theoretical and practical significance, we should pay more attention to the role of the subject of academic interpretation of Criminal Law. Although interpretation made by the subject of random interpretation of Criminal Law is not so powerful and conscientious, apparently, this kind of interpretation is the least powerful, however, to some extent, this kind of interpretation is the most profound sense from an influential role in the Criminal Law, and so we should guide it properly. And on the basis of a good foundation in the community, revise the law provisions to regulate it, and it will play its rightful role.