On The Blank Charges

This article made a comprehensive study of the blank facts from another point. The first part of this article analysized the legislative situation of the blank fact and its existence reasons. There are 74 blank facts of charges belonging to the Criminal in the year 1997. We classified these charges as follows: First, there are many provisions in blank facts, involving laws and regulations in a wide range. Secondly, the reference fact of criminal law were in the level of relatively lower standard, contrary to the Legal Principle. Third, intentionally fault with the two sin in the form of a provision against the principle of keeping criminal guilt and analyze the causes of blank facts: A, due to the utilitarian value of criminal nature. B, due to the limitations of understand to the nature. C, due to the extensive restructuring of social relations of the criminal law. D, due to the complication and specialization of the regulationed field of the law in modern society. E, due to the limited capacity of criminal legislation.The second part of the article discussed the questions of the blank facts. First, from the conflict between the blank facts and the principles of the statutory crimes: from the principle of legal profession, blank facts has met the needs of the two facts that carrier a "text" and the "law" does not contain the customary feature, but strictly speaking, the administrative regulations is difficult to competence the role of the law. Anyway, China's Criminal Law and the existence blank facts directly contrary to the specialization of the legal principle. From the principle of legal certainty, only by reference to the relevant norms in the system or specific content of the provisions in order to meet the constituent elements clear principles. Secondly, from the principle of democracy and the rule of the law, if only in form, the blank facts do not seem to against with the principle of democracy and the rule of the law; However, from the the initial level, the existence of the blank facts result to the fact of the separation between the constitute punishment and the state of the rule of law and democraticprinciples, blank facts against supplementary norms is a practical point of enabling legislation specifically Construction of the Constitutional Review to the enabling legislation for effective supervision, thereby increasing the blank facts of democracy. Third, from the Criminal Law According to the principle, the provisions of simple level required to achieve control to as small as possible, but also make it inclusive criminal facts blank circle was greatly drawn. blank facts of the humility nature of the crime and the need to maintain into an awkward fact. The formulation and judicial explanations blank facts Humility should follow the principle: A, the Legal Principle. Judicial interpretation has legal effect only in the existence normative documents relating to "seek the law", referring to identify specific elements of the act blank. According to this principle: 1,the reference has not to be the requirement to fill the blank facts, either establishing a criminal justice explained that the specific elements and characteristics. 2, the judicial interpretation of this kind of behavior can not be construed as a form of crime if the reference basis for the corresponding blank facts of criminal behavior characteristics is unclear. 3, if the blank facts as a reference for the expression of a particular type of behavior, only stipulates that a civil or administrative liability and criminal liability and the justice explained that the scope of this act into a crime. B, to judicial interpret the initiative of the correctly handle of the relationship between passive and judicial principles. In the judicial process of judicial interpretation facts blank, blank facts when there is no direct reference in the regulations or not, the first judicial interpretation can not explain, in lieu of a reference, and should be empowered to resolve criminal legislation. C, it has a principle that to be conducive to the accused. So called conducive to the defendant, refers to make a decision favorable to the defendant if the interpretation of blank facts faced multiple options. D, from the social function of the criminal, the blank facts has the function to embody the conflict that of criminal law of the protection of human rights and function of social protection. To analyze the blank facts in modern society, we need to be through the blank facts of the social function, both in the converging point of the criminal law and in too much emphasis on personal securityand neglect of the social protection of the legal principle of absolute understanding and made the necessary remedies.The third part of the article discussed the question of the criminal retrospective effect of the blank facts and explored to fill the blank facts recognizing the supplementary sources to fill the law, and discusses the different national laws for the purpose of the change, and apply whether it is fair from the light to the old question.The forth part of the article analysized the legislative perfection of the blank facts. In the last part, the article discussed how to avoid the unreasonable blank facts and the technical legislative and judicially practical to promote reasonable solutions. First, strictly limit the scope of the legislative blank facts. Second, to rightly decide the reference of the blank facts. Third, to enhance the clarity of the blank facts, fourth, to strengthen the coordination of the laws and regulations on the content of the references. Fifthly, we need the law dseparate from deliberation with the fault and requirement of a difference punishment.