On The Fiction Of Criminal Law

Fiction means to treat this fact as that fact, and give them the same law effect. Fiction phenomenon is not seldom seen in the penal code realm, but this phenomenon haven't been put enough attention in theory research. Are there suitable reasons for fiction? Are the existing provisions of fiction reasonable? Do fiction have any risk? Whether fiction behavior needs a norm etc? The theories field still lacks a system research and the article carried on a preliminary study to these problems.The article put forward fiction in law should include four kinds of types, namely fiction of law, legal fiction by judge, fiction in judicial interpretation, fiction in academic study. Also emphasized to analyze the fiction of law, analyzed the reason of fiction. Fiction of law can economize legislative resources, can carry through a certain intention and policy for lawgiver, can resolve difficulty problems in the administration of justice, can achieve a balance of crime and penalty. In the meantime analyze the potential risk of this kind of lawmaking technique have carried on and point out, if the fiction of law isn't appropriate should endanger the function of criminal;if the fiction of law not appropriate easily cause the crime and penalty out of balance;if the fiction of law not appropriate easily caused a lot of confusion to criminal theory and criminal justice.For control the risk of fiction, the article maintains that the fiction rules should be prepared to build. The main contents are as follows: the lawgiver is the main proper body who have the right to make fiction, in legislative interpretation and judicial interpretation prohibit fiction. The basic principles about fiction of criminal law should be followed : fiction can not hurt innocent people;equally evil principle, generally identified by the public, the prudent of fiction, respet for criminal theory principle, convenient for resolve problems in juridical practice principle.Fiction should follow certain necessary procedures: listen to public opinion more, give explanation and justification why to make fiction, establish the necessary procedures for supervise and oppugn and abolish inappropriate fiction.