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The Research On The Violation Of Provisions In Our Criminal Law

Posted on:2016-05-11Degree:MasterType:Thesis
Country:ChinaCandidate:J X WangFull Text:PDF
GTID:2296330461463564Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
Since the eighteenth session of the fourth plenary session, the rule of law has become another bright point in the modern building of China. To promote the rule of law comprehensively, we not only need to make the law scientifically, but also explain the law justly and apply the law to the fact reasonably. This is also true for the application of the Criminal Law. The Violation of Provisions is very special in the Criminal Law. Comparing with other rules, the legislation uses the words of Violation to describe the facts about a crime explicitly, making the referred non-criminal legal norms clearly. There are no words in the law that select and use casually. Therefore, to study the related questions of the Violation of Provisions to distinguish the questions in the current judicial practice, especially from the point of hermeneutics, is very essential for study. From studying the cases and the related theories, we can find the explanatory methods and to solve the problems in the current methods.This is also the objects of the study of the Violation of Provisions.Except the parts of introduction and conclusion, there are four parts in the thesis:The first part is the basic introduction of the Violation of Provisions. Named after its formal characteristics, the use of Violation of Provisions is not a common saying but is used for convenient. Therefore the basic introduction is essential and prior. In this part, by the way of making a table, I list all rules of the Violation of Provisions. There are 68 kinds of crimes and 15 kinds of legislation language. Then compared with the legal crime and the blank count in the Criminal Law, make sure that the Violation of Provisions belongs to the legal crime and crosses with the blank count. Therefore different concepts can communicate with each other in theory. Then from the three aspects of the classification, structure and function, the concepts of the Violation of Provisions are further discussed, providing a basic theory foundation for the explanation.The second part is the basic explanatory questions of the Violation of Provisions. From the point of judicial practice as well as the contents of the judicial explanation and the theory explanation, I provide with the idea of questions independently. Specifically, the main questions in the explanation of the Violation of the Provisions are: firstly, there are colors of willful explanation and the judicial staff doesn’t pay high attention to it. The crime of illegal possession of firearms and the crime of illegal manufacturing of firearms respectively belong to the Violation of Provisions and the Non-violation of Provisions. But violation plus deeds plus accusation is the common way in the expression in judicial practice. From this phenomenon, I study the willful explanation and then refer that the knowledge restriction of the judge influences the level of law explanation. Secondly, the explanation improperly defines the range of the supplementary provisions and the non-criminal rules are not clear. The authoritative explanation and the theory explanation have different ideas about the range but both cannot reach an agreement. In the actual cases, the explanation between judges also has a big difference. The law, administrative regulations, rules and regulations, which belong to the range of the supplementary provision, this is a very common problem of the Violation of Provisions explanation. Thirdly, the explanation lacks the systemic description of the special issues of the crime constitution. From the perspective of hermeneutics, the explanation of criminal law is to explain the content of the crime constitution clearly and non-ambiguously. The Violation of Provisions is due to the specialty of the crime counts and this is also true in the aspects of the crime constitution. I take the offense of major accident crime as an example, from the parts of the case, the subjective aspect and the objective aspect, pointing out the problem or reasonable suspicion. Fourthly, the explanation does not clearly clarify the explanation of administrative responsibility and criminal responsibility. From the angle of traffic accident responsibility identification, I point out that the judicial practice taking the responsibility of the Confirmation instead of the criminal liability, having the risk of violating human rights.The third part is the theoretical basis and explanatory methods of the Violation of Provisions.In the specific explanatory of the criminal law, we must stick to the basic value of the criminal law which is statutory crime and penalty and the modest criminal law. Therefore, it is able to make sure the explanation cannot miss the correct orientation, to guarantee that the explanation of the results in accords with the present pursuit of criminal legislation, to guarantee that the explanation in accords with the interests of the majority and be rational. The Violation of Provisions explanation should adhere to the democratic requirements of statutory crime and penalty as well as the pursuit of value in the protection of human rights. We should also define the range of supplementary provisions rationally, ensure the possibility of national forecast, and avoid the use of penalty power arbitrarily. The explanation of the Violation of Provisions should insist on restraining requirements, dealing with the different levels between the administrative law and the criminal law. And substantial explanation should be paid attention to. Also, the explanation must be in favor of the defendant. In addition, in view of the specialty of the Violation of Provisions, this part discusses the explanatory methods of literal explanation, systematic explanation and purpose explanation. Through analysis, the thesis comes up with the idea that the literal explanation is a priority, paying attention to system explanation and being careful when uses the objective explanation. This is also another innovative part of this thesis.The fourth part is to solve the problems of explanation and this part is the most important and innovative one. According to the second part where refers to the problems and related questions in the Violation of Provisions explanation, this part settles the problems from four aspects: First of all, compared with the Violation of Provisions in the Germany Criminal Law, our country’s Violation of Provisions lacks limited words and the legislative language is various. This is very difficult to explain. Therefore, in the short term, the legislative is impossible to change broadly and the Violation of Provisions explanation is very necessary. We must pay attention to it. In the judicial practice, by improving the ability of self-learning, establishing the Violation of Provisions case-resource database, strengthening the training, it is possible to improve the quality of judges. So, this is not only can improve the judge explanation level but also conducive to promote two-way communication between theory and practice. Secondly, to make the non-criminal provisions of the Violation of Provisions clear, the supplementary specification is defined as legal normative documents thirdly, a systematic explanation to the special problems of the constitution of crime: crime subjective aspect, the behavior commits a crime, they are not required to understand the content of the supplementary specification, and the error of cognition cannot hinder the criminal intent; the objective aspect of the crime, when supplementary specification changed, according to the specific situation to analyze the law change or the change of fact, then we can make a further judgment. When the supplementary specification is multi-level, the secondary supplementary specification must be the legal documents with common use effect. What’s more, the two level of supplementary specification cannot diverse too much in effect. The results should be verified to the constitutional law. Finally, to handle the relationship between the criminal responsibility and administrative responsibility well. This part analyzes the difference between the justice and efficiency, laws and facts, the purpose of the criminal law and the purpose of the administrative law. In this basis, this thesis thinks that the accident responsibility book cannot be used to determine the criminal responsibility. It can only be used for reference and the court can refuse to refer to it. In determining the criminal liability, we should adhere to the independence and specialty of the criminal responsibility, explaining from the criminal law itself to adopt the method of substantive explanation.
Keywords/Search Tags:the Violation of Provisions, the legal law, the blank count, the criminal explanation, the supplementary provisions, statutory crime and penalty, the modest criminal law, the substantive explanatory methods
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