Thinking About The Filling Models Of Our Criminal Law's Loopholes

For the Law enacted, the existence of the legal loophole is not a new problem. When the law is enacted, it has been some legal loopholes. This is inevitable .The same as one of the main sectors, the Penal Code must has loopholes too. However, the crux of the problem is not what we reach agreement on the loopholes, but what we have to design the filling pattern. Because the natural fate of the law was applied, this also decides the loopholes must be filled. But Whether the selection and use of the filling mode is appropriate directly relates to our criminal law system 's health and perfect, and it also affect the soul of the principle of criminal law - legality and the ordinary people to understand and abide by the law, achieving the objective of the study of law. At the same time, the situation of our country's loophole filling has so many problems, though we have many kinds of filling modes, such as the legislative interpretation, the judicial interpretation, the single Penal Code, the Penal Code amendment, and the subsidiary criminal law. All those models converge poorly and they also lack rational division. As a result, this leads to cumbersome and confusion of the entire penal system. Therefore, based on this, thinking and designing a positive way to fill loopholes becomes our responsibility and mission.Following the inertia mode of the people, I divide the whole text into three parts: asking questions, analyzing questions and solving questions. From the theory to the practice, and from "the should be " to the reality, we analyze the problems more and more thoroughly and at last give some suggestions and build a multi-level model of mending leakage. This paper is the following general ideas and the overall framework:Part I: Issues rose. First on the inevitability of loopholes in the Penal Code, the author discusses the question from the two aspects of subjective and objective verification. One side, the development of social is absolute, and the perfection of the law can only be relative because of the complex of the social issues. The law has the natural hysteresis. The other side, for the legislators themselves, their capacity to understand, and the expression capacity is limited. It is impossible for them to make detailed provisions for a vast complex society, and the loophole of the enacted law is inevitable. The most important is that we can not ignore the existence of loopholes, so next to the author proves the inevitability of filling loopholes. Besides the fate of application decide that the law determines the inevitability of filling loopholes. The same the legality principle, and the social and human rights protection also reflect this necessity. However, admitting the necessity does not represent the results can be attained, so choosing the appropriate filling models is of great significance. Therefore from the aspects of the form requirements and the essential requirement of the Legality, we go on making some necessary discussion and do theory foreshadow for our analyzing and solving questions.Part Two: The analysis to our filling loopholes' situation .This part takes us from "the should be" to the reality. First the author gives us a brief introduction to the current criminal loopholes and the filling models in our Penal Code, in order to achieve the rational classification between the loopholes and distribute the appropriate filling models at last. Then we make an analysis of the pros and cons on the existing modes. This is not only the point of the second part but also the key of the full text. If only we have an accurate understanding about the situation of the current models, we can improve and learn from them, thereby to design better mending leakage model. According to this, we make much more detailed analysis about the single Penal Code, the subsidiary criminal law, the Penal Code amendment, and the interpretation system one by one and give some better suggestion,such as introducing the judge,and giving them the power to interpret the law .Part III: The thinking and reconstruction about our Penal Codes' filling modes. Of course, this part is the final destination of the entire article. We have mentioned so many times that the establishment of a scientific filling mode depends on every model's scientific and reasonable and their Reasonable convergence. Besides, whether the classification of the models is accurate, decide the realization of the objectives to a large extent. Therefore, I first select the principle of legality as a standard. According to the process of recognizing the loopholes and the extent of restrictions from the legality, we divide the loopholes into false loopholes in the law, real loopholes in the law and real loopholes out of the law. Therefore, taking into account the three-tier classification, multi-dimensional model of mending leakage should also be started on this basis. First the false loopholes in the law can only be explained by the judges. They can not and do not need the intervention of the legislators. Of course, we also require the internal and external mechanisms to restrict the judges, and this is also necessary. Second, the real loopholes in the law can only be amended by the legislature in the amendment mode, although the current amendment needs some necessary improvements. Finally, for the real loopholes out of the law, we should treat them differently. If it is an occasional individual loophole, we should neglect it, because this is a kind of necessary price of the Stability. But lf they are loopholes which often appear, we must supplement them by the special criminal law. Of course, though they are both special criminal law, the single Penal Code and the subsidiary criminal have different collaboration and division of labor. At this point, from "in law" to "out of the law", from the true loopholes to the false loopholes, from the explanation of the judge to the amendment of the legislature, and following the supplement of the special criminal law, we finally build a multi-level model of mending leakage on the basis of improving the existing modes.