Three Dimensions Of Form And Substance Of Criminal Law

Debate upon whether to exercise the substantive criminal law theory or formalcriminal law theory in criminal issues has been prevailing among scholars in recentyears, in spite of its long history, thanks to its fundamentality and the development ofthe country as well as the progress of the criminal law legal system. The publishing ofThe critique of China’s substantive criminal law theory by Researcher Deng Zibin andof Substantive criminal law theory by Professor Liu Yanhong in2009, was soonfollowed by that of The re-declaring of the formal criminal law theory by ProfessorChen Xingliang and of The re-advocating of the substantive criminal law theory byProfessor Zhang Mingkai, the two contradicting heavyweight articles on China LegalLaw,4th Periodical,2010, all of which indicates the very prelude of an unprecedented“School Debate” on China’s criminal law.This dissertation, to begin with, confirms the rationality and the necessity of this“school debate”, and then unfolds the analysis in three dimensions of macro, middle andmicro view respectively, in order to clarify the different levels of the contradiction andthe fundamental divergence between the two opposite theories, based on which todiscuss every level of the two theories and to further point out the rationale rooted informal criminal law theory in sharp contrast with the weakness of China’s current legalsystem development. Thereinto, the dissertation deems the necessity to build formalrules of law first rather than chasing the air castle of substantive rules of law by valueanalysis and horizontal and vertical comparison in the aspect of macro view.Subsequently in middle view, this dissertation believes the significance of thedevelopment of formal rationality as the core of China’s current criminal law theory andits practices. Thus the dissertation completes the verification of the choice of formalcriminal law theory in micro view, given the respect towards the norm loophole alongwith the prudence in explanation.The three views above have close logical relationship. The macro view on value andtimes lays the foundation for the middle view on rationality, which will further set thedirection for the micro view on norms and interpretations, while the micro view will be based on and reflect the conclusions from those two views above. These views fromthree dimensions will work together to support the choice of formal criminal law theory.