Interpretation Of The Criminal Law–the Judicial Value Of Social Consensus In The Social Transition

After three decades of reform and opening policy, our country is in the period ofsocial transition at present. With the development of society, criminal justice ishighlighting some new situations and new problems among its application. As the newstage of developing society, the contradiction appeared between the original values ofcriminal justice and the new idea of social conflicts resolving. Criminal justice as a themost important part of criminal operation have important social functions, such asnormative social behavior, maintaining social stability, protect the economic order,economic compensation, education, enlightenment and transformation functions.However, because of the law system itself exists the hysteresis quality and the inherentjudicial idea in the process of social reforming, the criminal justice question emergedunceasingly in recent years and the miscarriages of justice sometimes occurred,whichlead the practical realm and the academic circle carried on the exploration innovationunceasingly. We need basing on the new stage of the social transition, by the view of“general knowledge, common sense and reason” analysis the realistic question andanalysis the value of “three commons” in the period of social transition period.This article has researched the criminal justice values of the social transitionperiod preliminarily and systematically, from the explanation of social reforming tothe criminal law function’s introduction, then to the analysis of the flaw of the traditioncriminal justice values, finally to the certification of the superiority of criminal justicevalues which based on the the social mutual recognition. This article has carried onthe analysis to the tradition criminal justice values’ malpractice and demonstrated itaccording to its historical perspective and rationales, the negative influence by the socialdevelopment evolution. On the basis of previous studies, combined with the influencesof domestic in recent years, the repercussions on case,or example analysis in the society,put forward the shortage of the traditional criminal justice values, laid a foundation tothe text of the advantage of social consensus. On the analysis of the traditional criminaljustice values, analyze the positivism briefly and shortcomings of positivism in theprocess of contemporary legal application and positivism. It explaines traditionalsyllogistic, namely judicial view which regards related criminal law article for majorpremise, the case facts for the minor premise conclusions with punishment fits the crime.It used concrete cases to state that it was easily to lead miscarriages of justice if criminal justice personnel used syllogistic will handle the case through simple for use, extremelyhappened through. The crime criminal law decides the principle to take our countrycriminal law the basic principle, in the social development process, duing to judge themachinery, ossified utilization this principle, causes this principle to have all sorts ofproblems in the developing process, causes the law to be separated from the people,causes the legal decision to come apart with people’s cognition, has not realized thegood legal effect and the social effect. Through the analysis of the above typicalviewpoints, points out in the social transition period and while the people’s value ideaand the social consciousness has transformed, it is bad to maintain the social order ifdefends stubbornly the above criminal justice idea, realizes the fair. After analyzingthe traditional judicature idea, the article study to the social mutual recognition for thefoundation criminal justice value idea preliminary. Carries on the concept of the generalknowledge，common sense and reason,determines the primary meaning, carries on theexplanation to its connotation. And divides the general knowledge common sense intofour parts. In contemporary society when people’s right consciousness awakens day byday, the legal trial which reflects the livelihood of the people, represents the publicsentiment, manifests the public opinion regarding to maintain the social stability,eliminates the social contradictories have the vital significance. The people’s jurysystem as the embodies judicial democracy, in the process of the lawsuit jurors willembody common sense of social consensus through the custom for the jury process,effects on the judge’s professional thinking, both complementary strengths will leadthe decision of the case more reasonable. This paper will analyze two judicial valuesand point out the advantages and disadvantages to reflect social consensus in thesocial transformation in judicial value.This article includes four parts. First, it analyzes the concept of socialtransformation, through describing the conception, taking examples to analyzes,characteristics analysises to prove the social transformation and the reason of socialtransformation leads the changes of judicial value. Second, the social function ofcriminal law which includes the unbiblical cases comparing with current criminal law offunction. Third, inherent defect of criminal justice and its performances, through theanalysis of the previous case of legal values pointed out a series of problems, andsolutions and effects for problems in the process of legal construction in China. Fourth,interpretative common sense of value in criminal judicial, this part of the common sensebenefites to interpretative the existing system of punishment, overcome the false case, promote judicial justice, be helpful for maintaining people’s right, and through thepeople’s juror system it interpretatives the judicial value of social consensus in the socialtransformation period from another aspect.