On The Legal Fiction In Chinese Criminal Law

Legal fiction terms though is by the criminal law expressly provided otherwise,in the form of a legally prescribed punishment,is must strictly abide by,but there may be many defects because of its itself,cause the embarrassed in the judicial practice.The study of criminal law in legal fiction is directly related to the current criminal law of our country legal fiction in terms of the choice of the applicable criminal legislation technology and the future,is helpful to deepen the study of legal fiction problems in Chinese criminal law.Full text total of more than 40,000 words,is divided into four parts,respectively from the concept of legal fiction in Chinese criminal law,the relationship between legal fiction and other concepts in criminal law,analysis the pros and cons of legal fiction,and perfect our country criminal law in the four aspects discusses the legal fiction path.The first part.Legal fiction concept and judgment method.The concept of legal fiction,as a legal fiction in Chinese criminal law value not tied under a concept itself,in and of itself has no right or wrong.In short,that is "different equivalent of" in the criminal law.Whether an item belongs to legal fiction articles shall be based on provisions as a way to judge.Due to different legal fiction terms on artificial objects have their own side,so in judging whether a particular criminal law provisions belongs to legal fiction terms need to combine multiple factors,which explains concept,language understanding and the aspects should be considered is to use charges.The second part.Legal fiction and related conception.Legal fiction concept and provision of attention and is not to be confused with the concept of the presumption,the relationship between them is mutually exclusive,and legal fiction and crime number theory,there are to cross the aggravated consequential offense.Mathematics deals with aggravating partial of crime of criminal law provisions may also legal fiction.And some of the so-called "conversion made" is not realized SINS qualitative transformation,it as a legal fiction terms may be more appropriate.The third part.Legal fiction pros and cons analysis.To be specific,the legal fiction is make up for the loopholes and realize the economy of criminal law and criminal law to carry out the criminal policy of positive value,also have violated the criminal law substantial justice request,destroy the system of criminal law.Legal fiction,however,the positive value or other way,can only stay in form or its positive value.In contrast with the two,do more harm than good.The fourth part.Legal fiction limited overcome path and method.The limitations of legal fiction terms respectively in clause itself has limitations and docking when used with other criminal law terms showing the limits.The author thought,deal with legal fiction itself exists unreasonable provisions of criminal law provisions shall be deleted,counts for use,description,legal punishment range Settings should be precise and detailed.For correcting the inclination of legal fiction felony provisions,long,should be paid attention to in the judicial practice to identify and differentiate actor's subjective aspect,should also pay attention to when sentencing mitigation.