On The Interpretation Of The Code Of Criminal Procedure

Legal interpretation is a bridge of abstract rule and concrete law case, having the important function of applying and perfecting law. But, since the different comprehensions of "legal interpretation " and the following problems of system position, a series of problem come out during the real operation of national criminal procedural interpretation, destroying its effects which should be play the biggest exertion. This paper draws up to pass the investigation and analysis, in order to rebuild our criminal judicial interpretation system, and recover its real facial expression of " legal interpretation", for providing creative resources of our criminal litigation of rule.This paper. adds up to more than 30,000 words, excerpts the preface and conclusion, it is divided into three parts, and the main contents is introduced as follows:The preface part mainly discussed to the necessary study of legal interpretation in the field of criminal procedural law. As the generally accepted theories, the legal interpretation can avoid written a deadlock of grammar, and fix up its proper loophole in the meantime. But the bugs in real operation have been criticized widely. In our country, content of legal interpretation about the theories studies and practice is not completely the same. The former combines with the dynamic and static state. The dynamic state means that the legal interpretation carries out in the process, the static state then points as a kind of conclusion. The latter means that the entitled organization draws up of take hermeneutic provision of having the widespread effect. What effect will appear through the difference of fixed position in the function of clarifying law, how to urge its function to reset from the system, this is the problem that this text wants to study.The first part will discuss the current status of criminal procedural interpretation. The article is made up of the subjectivity , the objectivity, the form and the conclusion of explanation to introduce our exterior characteristic of criminal procedural law interpretation, and point out the mechanism imperfections because of the deletion of normative principle explaining form, the detailed regulation explaining way and the lack of constitution as the objectivity of explanation. For example, weakening the " interpretation " should-be reasonableness; broke the authority of lawmaking; lowered judicial activity; limited the function of interpretation by judicatory.The second part is the analysis to the reason of the current criminal procedural interpretation. This part is mainly taken in to explain from the history tradition, realistic source and idea mistake. In the eyes of the history, absolute power view of widely accepting and the imperfection of the legal traditional methodology caused to the adoration of the norm law ruling. The lack of legislation is a realistic reason, its making legal clarifying replace the job of legislation in some extent, which produces the way of detailed code. But in general view, there are always mistaken areas in the field of textual open understanding. The criminal procedural law not only should include constitution, international standard as the formal legal source, also should cover the principle like informal legal source. As long as a basis of application can get demonstrated in a open system, the judge should absorb it into the frame of current legal order through the explanation, and come out by passing the whole sentence of interpretation and logical reasoning in the end.The third part is the idea of rebuilding national interpretation system of criminal procedural law. The writer thinks that lots of problems of our current interpretation system can attribute to the subjectivity and form of the explanation, particularly the former is the key point, as a result we should fix them in a reasonable position, and basing on them to rebuild the system of interpretation. In my opinion we should divided the subjective bodies into two part including the one of specific case and the one of unity. The former are judges who have the highest effect, public prosecutors and police; the latter is the Supreme People's Court. The final purser of system rebuilding is to take the prejudication as the form of uniform explanation, to build up an positive interaction of individual case and unity interpretation, in order to provide a system resources for the criminal procedural operation. On this foundation, according to a progressive way of reform ,we put forward the path of rebuilding the system, as well as the reform of verdict rule, the case instruct with the wrong case pursue system, judge's character and exerting lawyer's academic theoretic interpretation function etc. Finally, the writer discusses the principle of the criminal procedural law interpretation.The conclusion calls for that the theory study should learn the attribution of law as the science of interpretation, then taking the interpretation as an important part of criminal procedural law, in order to provide enough intelligent support for the practice. We hope that the regular criminal procedural law can carry out soon, by the legislation and judicature.