The Exploration Of The Legal Fiction In Criminal Law

In view of the legal fiction in criminal law exists a lot of confusion in criminal legislation and judicial practice, this paper contains two parts:the first part is to clarify the meaning, features, functions, legitimacy, of the legal fiction in criminal law, and the second part is to summarize the problem of the legal fiction in Chinese Criminal Law by means of the analysis of the categories of legal fiction in Chinese Criminal Law, to make recommendation to improve" it.This article starts with discussing opinions of scholars in different times and places about legal fiction, to explore the meaning of legal fiction in general, and then combines the basic principles of criminal law, defining the legal fiction and getting that legal fiction in criminal law is divided into two levels of meaning, which are distinguishingly used to determine whether the regulation is legal fiction in criminal law and to determine the adequacy of legal fiction.The first level of meaning is that subjective construction that the Penal Code expressly provides different behaviors following the same behaviors and their legal consequences, and the second level of meaning is that subjective construction meeting the stringent rules, Law Modesty, balance of crime, of modern criminal law. Thus the legal fiction in criminal law defines that reasonable subjective construction that the Penal Code expressly provides different behaviors following the same behaviors and their legal consequences.Considering the two levels of criteria in legal fiction in Chinese Criminal Law, and then analyzes the classification of it, the article summarizes the four major problems in the legal fiction in Chinese Criminal Law, which are that the highest judicial organs legislate by legal fiction, statutes are complex and part of them lack appearance characteristics leading to difficult identification, the tendency of universal doctrine of criminal law and the randomness of legal fiction exists. Then the article puts forward suggestions to improve the legal fiction in Chinese Criminal Law, which are that the subject of legal fiction should be strictly limited, provisions should be streamlined easily identified by appearance characteristics, the concept of substantive justice and universal rejection of doctrine of the criminal law should be practiced, and legislation by legal fiction should be carefully and scientifically and reflect the experiences of judicial practice.