The Empirical Analysis Between The Formal Interpretation Of Criminal Law And The Substantial Interpretation Of Criminal Law

The practice of the criminal justice can't be separated from the interpretation of criminal law.In order to applying the criminal law correctly,the judge should explain the criminal law correctly.Especially in the background of new type of crime are springing up and the traditional criminal methods are renovating,but the criminal law has no such regulations or the words of rules are ambiguous.the criminal judges how to explain the criminal law —— to insist on protecting the legal interest and punishing the actions by substantial interpretation initiatively in considering of the mission of punishment,or strictly according to the principles of ”nullum crimen sine lege” to pronounce not guilty? The judges are explaining the criminal law in theory of formal interpretation or in the theory of substantial interpretation,and what influences would be brought to the cases becomes the motivation to write this paper,In order to have a relatively accurate empirical analysis,this paper used the method of issuing questionnaires to 173 criminal judges in City Q's two levels court,who works at 18 criminal adjudication tribunal between 11 grass-root court and 4 criminal adjudication tribunal in Intermediate Court,as sample.To found out which stand they pointed and why they chose it from comparing and analyzing their answers in the questionnaires especially the points in the 13 cases.The conclusions coming up with analyzing,these judges don't have a clearly boundaries in using the theory of formal interpretation or in the theory of substantial interpretation.On the contrary,most of them always choosing different methods in particular cases according to the actual circumstances.Sometimes they stand the formal interpretation,sometimes they stand the substantial interpretation.Even both applying in one case — — formal interpretation in conviction,but substantial interpretation in sentencing.However,they have their own different reasons to choose different stands,which contains good and bad.After further analyze the goods and bad,considering the institutional Influencing factors and different capabilities,this paper come to the conclusion that the theory of formal interpretation is the suitable and best way in current situation of judicature.