Legislative Intention On The Interpretation Of The Chinese Criminal Law

In pace with the transplantation and introduction of several theories of theCriminal Law in civil law countries, there has been a variety of controversies andbattles over theories and schools in the academic circles of the Chinese CriminalLaw.“Legislative intention” is a term whose appearance frequency is high in thediscussion about the interpretation of the Criminal Law. At the same time, Idiscovered that the discussant used the polysemous concept “legislative intention” indifferent ways but also defined it ambiguously until I had pored over a number ofrepresentative papers which applied it to debates. In other words, it seems that all thediscussants kept to the same concept, however, the intendments of “legislativeintention” were distinguished with each other. It is obviously that the problemdirectly caused the consequence that the academic discussion tend to inflect literallyand cannot in depth.Given this, I attempt to utilize the approach of classified discussing todeconstruct the concept “legislative intention” and transform it into several diversecombinations of “intention” and “legislative”, which is based on the semanticanalysis of concepts and the textual analysis of representative papers, as well asclearing and ascertaining the role of the concept “legislative intention” in which fieldof the discussion about the interpretation of the Criminal Law in academia, thenilluminate the several diverse implications of the concept by legends in order toavoid the confusion that result from misusing of concepts and referencingambiguous.In this thesis the discussion is divided into five sections.Part1:The academic discussions about the application of the term “legislativeintention” in the fields of interpretation Criminal Law should be limited to severalspecific fields--classifications，methods and objectives.Part2:Two conclusions have been drawn by analyzing the literal examplesabout the applications of the concepts:(1)different applications of the concept are directly related to the scholars’ standpoints of interpretation of Criminal Law;(2)aconsensus nominatum could be inferred by the analyzing, though its concreteintendment is uncertain.Part3:Some conclusions have been drawn by contrasting the whole and parts ofthe “legislative intention” in the interpretation of the Criminal Law, for instance,“legislator” is the hidden factor of the legislative intention, legislative intentionimplies time of arrival,“legislative intention” could be divided into “legislator”and “intention” and there are three means of “legislator” and two means of“intention” which are differ from each other. In the ending of this part, theabove-mentioned concepts are permutated and combined again, and then the rangeof the application “legislative intention” is illustrated in the form of legends.Part4:The parts which are analyzed above composed the concept “legislativeintention” are replaced in the context of modern Chinese with the purpose ofdefining the actual content of the three kinds of “legislator” and the relationsbetween them in the modern field of interpretation of the Criminal Law.Part5:It is supposed that two hypothesis conditions were indispensable for therenaissance of “the theory of the subjective interpretation”,which adopts legislativeintention as the goal of the interpretation of the Criminal Law--the detailed CriminalLaw and the appearance of classic scholar, which is based on the above discussions.