A Dissertation About The Form Explanation And The Essence Explanation In Criminal Law Explanation

Explanation of criminal law is both a theoretical and practical topics, has been given a deep concern in criminal law in recent years. There are many scholars issued arguments or wrote books on this topic, but overall,it’s more theoretical and little practical, more impetuous argument and think calmly inadequate. This paper put forward a interpretation position based on summing up the results of previous theories and this position has been fully demonstrated in theory and practice to sought its rationality in explanation and to secure its viability in application.There are four parts of the body. The first part using the literature research methods to clarify the status of form explanation and essence explanation in criminal law explanation. Combing and analyzing the theorists on the form and essence explanation and presenting a point that there are no absolute essence explanation or form explanation and we need to determine the position in criminal law explanation. Comparative research and literature research methods were used in the second part of the body primarily. On the basis of summary and reflection the dispute of form and essence, clarifying the differences between the form explanation and essence explanation on the composition of crime areas and giving a in-depth analysis of the differences to conclude that the differences between them will get the balance and harmony within the scope of common sense doctrine eventually. The third part of body is focal point. Proposed a explanation position that combines form and essence explanation, and have launched detail for it.It advocated to use dialectical position combine form rationality and essence rationality to explain the Penal Code. Namely, form explanation is basal, essence explanation is supplementary, care to the essence explanation as much as possible on the basis of form explanation. Through analyzing the theoretical premise, the social premise of combination position and the importance to human rights and legal interests protection to clarify the reasonableness and necessity of this explanation position. Case studies was used in the fourth part of the body primarily to test the theory in practice, by using the theory to find out the problem in current judicial interpretation, such as, some essence explanation were out of form bounds, some form explanation were mechanically applied. Paper exemplified by two typical cases Indian generic drug sales and network libel case, to show the use of the combined position in specific case.By discussing and analyzing these four parts, we reached the following conclusions eventually:In particular judicial practice, the disagreement about the forms rationality and substantive rationality presenting is not irreconcilable Whether in the field of crime constitutes or interpretation. The conclusions of explain are required to return to common sense doctrine finally. It’s a right way to solve old problems, to deal with new problems by choice the dialectical position to combine form rationality and substantive rationality to explain the the criminal law. The process of combining is this:on the basic of following the "formal rationality" to care and maintenance "substantive reasonableness" as much as possible. In short, the consideration of the "essence" can not exceed the restrictions of "form". Theoretical premise about the combination of form explanation and essence explanation is:the principle of legality;Social premise is:the current situation of china is still on the period of previous rule of law;Starting point is protection of human rights and protection of legal interests;End result is:common sense.