The Systematical View On The Criminl Terms Of Law Fiction

Legal fiction is not strange to comprehend, we can see the shadow oflegal fiction from the related system in the civil law such as legal personsystem, fictitious blood relation,inheritance.So called “fiction”becauseaccording to general understanding, we can’t contact two unrelated things,but lawmakers linked a regulation can make it become a reality. But for thecriminal law,it is not familiar to the people, few scholars study the legalfiction of the criminal law is the best reflect. The purpose of this study iscleatify the legal provisions of the criminal law for the judicial process ofconviction, and clear before fuzzy area, hope to provide some usefuljudicial practice for reference. The steamer arrived, will study through thereference as the predecessor’s research achievements, summarizing theexperience, and take historical interpretation, comparative analysis,finally draw the conclusion.This paper is divided into six parts (not including introduction andconclusion), the main content of the preface is introductory, which playsthe role of matting, this paper derived from an article of Zhang Mingkaiprofessor published in People’s FaYuanBao-----"How to distinguish theprovision of attention and legal fiction?" Then, the author found that manyterms s of the specific provisions of the criminal law involves the fiction,but not very clear, so this paper research points are to comb legal draftingconnotation and denotation, seize the nature and characteristics of lawdrafting, receive a pellucid demonstration on the criminal law’s legaldrafting.Details of the speech, the first part: A brief discussion on the legalfiction. Mainly introduced from the source of the legal fiction to explore the concept of legal fiction, pointing out that the characteristics of fiction.The second part: From the macro level to examine the legal fiction inTerms of the Criminal Law, the status of its distribution, number, and thelegal fiction and related concepts to discriminate, to discuss theoreticaldisputes and judicial confusion about the legal fiction.The third part: Mining the value of the legal fiction of the existence,mainly from two aspects to demonstrate, that is the position in the criminaljustice system, as well as the importance of the rule of law development.The forth part: Clearly determine the pro forma provisions ofstandards, including the form of standards and substantive standards, theformer mainly counts specific formulation and terms of the scope ofapplication is locked, the latter is mainly the similarity of legal interestagainst charges from light to heavy conversion, notelements of the basicoffense.The fifth part: The article will enhance a highly to reflect on the legalfiction of the provisions of criminal law, some fiction terms of not beingfully realized the criminal law functions, and some violate the criminal lawconcept implemented.The sixth part: Prepared by Terms of the existence of defects for thecriminal law, the author has in the analysis of the pro forma terms of thebasis of risk of the proposed improvement policy, that is a reasonableinterpretation and legislative changes.