| The application of criminal law is some judicial activities, which judges deal with criminal cases with criminal law rules, aim at obtaining some legal, reasonable and objective judgments. This essay’s basics view is the criminal law reasoning a basic method in the application of criminal law. Combining some cases, the author discusses how the criminal law reasoning uses in the application of criminal law in our country.The essay says the criminal law reasoning refers to some process of criminal judges’thought, which according to criminal law rules and facts of cases, judges infer criminal judgments and justify them in the application of Criminal Law. In China, the deductive reasoning is a dominant method of the criminal law reasoning. By the method of deductive reasoning, judges put the criminal law rules, which as the major premise, forward into the facts of cases, which as the minor premise, then it would be able to gain conclusions, which are impeccable in formal logic. However, because of the unclear and uncertain language of the criminal law rules, the major premise is absent, so that it can not successfully reason deductively. Then, judges have to rely on inductive reasoning and analogical reasoning to find the major premise and the minor premise. By the method of inductive reasoning, judges generalize the facts of social life, the criminal law rules, and precedent cases, which can make judges accurately understand the criminal law rules and more aware that the facts with some criminal significance. From 1997, the Criminal Law abolished analogy rule, the analogical reasoning seemed to be neglected by people. In facts, as an effective method of reasoning, it has been playing a very important role in conviction and in the measurement of penalty. Deductive reasoning, inductive reasoning, and analogical reasoning all belong to the reasoning methods of formal logic. In order to ensure the substantive justice and reasonable of criminal law decisions, judges usually use dialectical reasoning, which is not a reasoning method of formal logic, in the application of Criminal Law.In the process of criminal law reasoning, which is a process of rational reasoning and value judgments by judges, it can not be able to avoid the subjectivity of judges, which is giving serious influence to the objectivity of the application of Criminal Law. The objectivity of the application of criminal law requires limiting the arbitrariness of judges, the objective facts of cases and rules, objective criminal law reasoning process, and gain legal, reasonable, objective judgment result. In order to limit the arbitrariness of judges and make sure objective criminal law reasoning, we must give some reasonable constraints to the criminal law reasoning. Firstly, we should limit the arbitrariness of judges with criminal procedure, however, which rely on the respect of judges of the procedure. Secondly, by giving reasons to judgments, we can make sure the objective of judgments. Giving reasons to judgments means judges show off the process and result of the criminal law reasoning by the form of a verdict that can be supervised and verified by prosecuting parties and defense parties, the legal community and the public. Thereby, we can limit the arbitrariness of judges and make sure the objective of the application of criminal law.The main contribution of this essay is:This study aimed to guide the practice of criminal law and promote the theoretical study of criminal law reasoning, the contribution of this study was mainly practical and theoretical significance in two aspects.The shortcomings of this essay:Limited to the difficulties of collecting the literature and the author’s lack of judicial experience, coupled with the limitations of personal knowledge and ability, there are still many issues to be further deepened research. Although the author has made the best effort, the paper inference of criminal law applicable in the concrete application of criminal law, the depth of the problem in the study are still lacking. |
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