On Legal Fiction In Criminal Law

Legal fiction, firstly appeared in Roman Law,has been widely existing in many law departments such as civil law, procedural law,economic law and criminal law. Unlike the fiction in common law countries,legal fiction in China which has a civil law system is mostly reflected in the legislative level, especially in the realm of criminal law, because the principle of a legally prescribed punishment for a specific crime is the footstone. Legal fiction in criminal law means treating this fact as that fact and giving them the same legal effect, considering public policy. This legislation method can not only be adapted to society but also reflect basic value of law. It cannot be falsified. It include four features:the specificity of the term;the distinction of the objects; the equipollence of infringed legal interests and the legality of specific application. Legal fiction is helpful to save legislation resources and suit punishment to crime. Legal fiction should be distinguished from legal presumption, legal analogy, provision of attention and transformed offences. The distinction between fiction and attention provision is an important subject of interpretation of criminal law, critical to the identification of crime and non-crime, this crime and relevant crime.It is a good way to research legal fiction based on the provisions of current criminal law, which has more than 20 legal fiction provisions,covering general provisions and specific provisions. Besides typical fictional provisions such as fictional robbery (the provisions of Article 267 or 269), there are also some controversial provisions, containing provisions of causing injury, disability or death to the victim, provisions of being convicted and punished in accordance with the crime of theft. The controversy is focused on the distinction between legal fiction and attention provisions. We can give the right judgment from aspects of the necessity to establish those provisions, the equipollence of violated legal interests and the specificity of items. Comprehensive judgment can be made with multiple interpretation methods such as systematical interpretation method, interpretation of the purpose of laws, from the aspects of protected interest, the necessity of punishment, the forecast for the possibility of nationals and the coordination between provisions. Besides in Criminal Code, legal fiction is commonly seen in legislative interpretation and judicial interpretation.Legal fiction is after all analogy at the legislative level, so the risk of analogy also exists in legal fiction, thus legal fiction should not be over-weighed of during the legislative process. Once the legal fiction is inappropriate, it would deviate from the function of the ensured human rights, highlight severe-penalty doctrine, break the balance between provisions and suspend crime constitution theory. Some fiction provisions in China’s current criminal law have this trend. Despite the risk of legal fiction,abandoning this legislative method is not wise. What we should do is taking advantage of good fiction and avoiding inappropriate fiction. In a word, limitations to legal fiction is of great importance. In concrete terms, the legislature is the only eligible subject of fiction. Legal fiction is a kind of law-retain items, so there is lack of legitimacy of fiction in legislative interpretation especially in judicial interpretation. Therefore, the legislature must adhere to the basic principles of criminal law, the principle of equivalence of infringements on the legal interests and the necessity of applying the criminal law fiction. In addition, the judiciary staff should have a clear understanding of legal fiction and precisely use those provisions in judicial practice, avoiding possible risks of legal fiction.