Norms Of Criminal Law Fiction Terms Elaborate

As an intermediary between facts and norms, law not only has the practical side, but also has its fictional side. Legal fiction which bases on the values is a typical performance of the law's fictional side. From the considering of reality and value, legal fiction is a wisdom and good legislative approach which means to treat this fact as that fact or give them the same law effect.Considering the Criminal law itself and Carrying forward the principle of legality, legal fiction can only be limited to the legislative level. Weighing in at all, Legal fiction appears the expression of the criminal policy's value and criminal law's rational thinking of the legal phenomenon. In a word, the substance of the legal fiction in the criminal law context is a legislative approach which has a choice between the "changing of" the social and "no changing of the law, It not only reflects the scientific and artistic techniques of legislation, but reflects the intellectual, political and utilitarian value. In view of this, we can distinguish among legal fiction and legal analogy, legal interpretation, legal presumption, Provision of attention and so on.There are a lot of provisions of the legal fiction in China's current criminal law, however, this phenomenon haven't been put enough attention in theory research. Most typically controversial provisions focus on the distinction between the legal provisions of fiction and attention. Because it directly involves different conditions, thereby it affects the strict distinction between crime or not, in this crime and other crimes. So they should be taken into account to distinction the legal fiction articles which were recognized as " provision of attention clauses", the provision of attention clauses were identified as "the legal fiction articles" and not only the articles which were not only recognized as the provision of attention terms of the provisions, but also recognized as the legal fiction terms. As the legal fiction in close contact with the penalty function, we can research these articles from the perspective of crime and punishment.Dialectical analysis under the framework of the "Crime-Criminal Policy Criminal Law", for one part, Criminal legal fiction achieves the purpose of the special protection of special legal interests, makes criminal law think the just rationally and the Criminal Law carry out the criminal policy effectively. For another part, the fiction has possible risk such as the tendency of heavy penalty doctrine, violating the spirit of modesty, deviating the basic position of criminal law. Based on the ration of criminal law, fiction has its reasonable limits. In the macro, legal fiction should protect legal interests, follow the principle of legality. In the micro, the country is the proper body who has the right to make fiction, the legislative authority is the right of creation of legal fiction, the objects of legal fiction should be quite equally, the operation of legal fiction should follow regulations.