The Choice Of The Interpretable Of Criminal Law

The life of law lies in its application. Otherwise, it is just words on a page, so does criminal law’s authority and life. Its conclusions are drawn mainly from two branches---- one is the match between perfection of holistic formal legal texts and variation of cases in reality; the other is the back and forth between realities and forms. The studies and researches regarding the stand of interpretation of criminal law have become a hot topic in recent years. The difference views towards formal interpretation and substantive interpretation contribute to two theories : formal interpretative theory and substantive interpretative theory. The conclusions regarding some of difficult and complicated cases will be so various that different results of condemnation and penalty appear. I will focus on the debate between formal interpretative theory and substantive interpretative theory in order to analyze the difference between these two theories from the perspective of theories of criminal law and elements of crime. Formal interpretative theory suits the principal of legality in a nation of laws. Therefore, nowadays instead of emphasizing the substantive interpretative theory, we should hold a formal interpretative theoretical stand.There are three major parts in my paper: the first part is about the overall literary reviews of the debate which I mentioned before. Firstly, I will analyze and classify the criminal law interpretation to provide the basis for the following analysis. Secondly, I will briefly demonstrate the development and content of formal interpretative theory and substantive interpretative theory. Thirdly, I will summarize the divergence between the concept of formal interpretative theory and substantive interpretative theory according to their different stands. Finally, guided by elements of crime under the background of continental legal system, I will show the divergence points so that put forward the main points of this debate. In the second part, I will come up with the rational reflection on the outlooks of criminal law and the expansion of interpretation with the help of substantive interpretative theory. Furthermore, I advocate the formal interpretative theory which sets limits to substantive interpretative theory. In this way, the final achievement of justice will be made by the transparent justice, which fits more perfectly principal of a legally prescribed punishment for a specified crime and protects human rights. These two theories are not completely contradicted but the difference lies in the specific operation of difficult and complicated cases based on their application scope. Finally, I will emphasize the evaluation of formal interpretative theory’s application scope with the guidance of formal interpretation and substantive interpretation. In addition, I will further discuss some problems such as “the crime of robbery by disguising as army-man or policeman” “crime of intentional destruction or damage of properties” so as to reveal that formal judgment advances substantive judgment and insist on the choice to apply formal interpretative theory stand to Chinese criminal law.