Identifying Criminal Responsibility By Interest Balancing

Although balancing of interest was introduced into China late, academia and judicial practice have paid great attention to it since then. Because interest balancing was mentioned firstly in the field of civil law, so it was discussed less in criminal law. But the situation has changed over the past few years, and interest balancing is also popular in criminal.But there are still many scholars who do not think interest balancing can be applied to criminal judicial practice to identifying criminal responsibility. Even if some scholars agree, they still have a lot of concerns. This paper tries to find out why benefit measure was questioned in the criminal law, and then gives a theoretical demonstration in order to confound the sceptics. What is more, in the currency study, people do not know the theory orientation of interest balancing and how to identify criminal responsibility by it. So in this paper, interest balancing is positioned as methodology. Then it also tells how to identify criminal responsibility by the balancing of interest. We hope this paper can help the balancing of interest be applied to identifying criminal responsibility.On the basis of huge work of consulting great reference, by deductive method induction chart and so on, what we want to do just to express our view logically and clearly. Cases are used in the argument in order to demonstrate fully.This is divided into four parts. The first part introduces the theoretical origin of interest balancing. Interest balancing can be traced back to the Jurisprudence of Interest of Philipp Heck, jurisprudenz of Westman and the theory of interest balancing in Japan. The theory of interest balancing is different in German and Japan, and even different people have different opinions in one country. Generally, the interest balancing in German is just a method of making up law’s weakness and in Japan it belongs to the category of criminal law methodology. The study of interest balancing mostly concentrated in the areas of administrative law, civil law and judicial practice since it was introduced into China at the end of the twentieth century. It was discussed in criminal law just during the recent years, and there is still much argument about whether it can be applied in the field of criminal law. This is because the one-sided understanding of legal principle of crime and punishment, which should be understood in the perspective of the pursuit of essential justice in order to overcome the obstacles.Naturally interest balancing is a kind of value judgment, so maybe it would be abuse. There are three principles to follow during the process of interest balancing.Universality and particularity unifying means interest balancing is universal but it is much more important in complex cases. Rationality and legitimacy unifying means t we should search legal provision to make the preliminary conclusions legal. The last Principle is public opinion and legal purpose unifying.Then the third part tells how the interest balancing woks to identify the criminal responsibility. We list four kinds of situations---crime or not, this crime or that, whether or not belonging to miscellaneous provisions, the size of the criminal responsibility. Then it tells how interest balancing works in the four kinds of situations combining with specific case. Finally, we make a summary. When it needs interest balancing during the process of juridical practice, judicial officers first need to be in "blank" which means they should conclude in the perspective of ordinary people, getting rid of the law and get out of their own professional thinking. Then they have to looking for legal support. Of course, this process can be repeated until we get reasonable and legitimate conclusions.There are three aspects we should understand. Firstly, interest measurement belongs to the category of criminal law methodology, because Chinese interest balancing comes from Japan, whose interest balancing is a kind of criminal law methodology. What’s more the interest balancing to identify criminal responsibility is not only a way to make up law’s weakness, but also a kind of thought system. Secondly, it is important to deal with the relationship between the specific explanation methods and interest balancing. If we can identify the criminal responsibility, it means the case is not the hard cases we mentioned above in this paper. So it is not necessary to stress the effect of interest balancing. The last is to eliminate the concern that public opinion cannot kidnap the law, because the public opinion and the spirit of law are the same in most situations. The public opinion is a way of oversight jurisdiction. If the public cannot understand the law correctly, the result of judgment then becomes a corrective action.