Selection And Implementation Of The Position To Explain The Criminal Law

Criminal law hermeneutics, is the basic theory of criminal jurisprudence fieldresearch subject. A hot frontier problem in criminal jurisprudence in our country isexplained in both form and essence of criminal law interpretation, through in-depthanalysis of different academic views and position held by the scholars, acomprehensive field of our country punishment law of the criminal law explanationand works, can be found that explain explanation in both form and essence, althoughhave scale, but is now a more chaos. Yet fastidious carefully can explain the formand substance to explain their respective positions to make the summary, and "said"the position of the ownership has become a problem, its vague, not involved in botharguments, so temporarily difficult to belong to its position.Explanation in both form and essence antagonists from scholars of criminal lawinterpretation take a different stance reality reason, rather than the historical factorsmade, both for the understanding of the principles of legality, explanation of theconcept, adopts the method of explanation, and explains the limits of the position isdifferent between opposing realistic factors. On this basis, through a fastidious andreflection, the argument field can be summarized into the following several aspects:first, the principle of a legally prescribed punishment of the interpretation of formand essence of the meaning is a detailed debate and argument, such as the principleof a legally prescribed punishment is form the side, or the unified of form andessence side, both are conflicts have become the focus of the debate; Second, theconcept of crime, crime concept is the precondition of judicial application,cognizance crime, also is the premise of theory of constitutive requirements, theinternal concept has few scholars advocated, thus form concepts and mixed battleover the concept into the argument of a route; Third, the theory of constitutiverequirements, in fact, this is a kind of crime theory system the choice of the debate,and even can evolve into Germany and Japan, a three-stage theory of crime theory system and comprehensive judgment type plane fight crime theory system; Its4, thecriminal law interpretation, specifically, is the logical explanation attitude, nature ofinterpretation, interpretation and expanding interpretation of course becomes thefocus of debate, and logical interpretation whether system interpretation, historicalinterpretation from the perspective or objective interpretation method, which isadopted, and the status of straighten also then become the focus of the debate.Interpretation of rational reflection form and essence, the essence of the two canbe considered a form of crime theory and real theory of value, behavior withoutvalue and the result of comparison (or can be viewed as the norms in violation ofsaid and social harm, said profit violation of comparison), act utilitarianism and ruleutilitarianism, the comparison, the rule of law in both form and essence of the rule oflaw, the comparison of four aspects of prudent reflection compared with two,according to our country’s criminal law history tradition and the present situation,take the form of explanation, abandon the essence of interpretation. Level, in thejudicial practice should adhere to the following aspects:1.Insist the behavior typedraw a line form theory of constitutive requirements, responsibility in its class orphase of substantial judgment; Abandon illegal or illegal duty type of thecomponents of the essence theory, opposed to essence determine the constitutiverequirements of conformance class ahead of time;2. Adhere to the field of criminallaw to regulate the form of violation of no value judgment standard; Alert to harmfulto the society or the infringement of legal interest said the results without the valueof value judgment standard;3. Adhere to the rule utilitarian, advocating rulesregulations guiding significance; Abandon the act utilitarianism, to prevent excessiveadd substantial value assessment of the effect of socialism;4. Advocate forms therule of law idea, the leading form of the rule of law culture, to form a country ruledby law; Alert no form the essence of the rule of law the foundation of law to fullyimplement and destructive to the rule of law construction in China.Through the interpretation of explanation in both form and essence reflection and review, explain the connotation of the form can be summed up as, form rationalexplanation concept; To form type judgment behavior; Focusing on the possibility ofdirect interpretation and semantic meaning of the scope of restrictions; Adhere to thecriminal law legislative loopholes in the legislation revision added rules, againstjudicial interpretation to fill. And in the field of our country punishment lawadvocate form explanation, can be combined with component elements of a crimejudgment for the realization of the path, namely in the form of the componentelements of a crime in the specific provisions of criminal law interpretation for pointto explain position unfolds and argument.To sum up, in the form of form rationality and the rule of law for the idea,advocated form explanation, carry forward the rule utilitarian, then realize themodern criminal rule of law in China, is our country punishment law ought to beadvocated and orientation at present.