The Judicial Interpretation Of The Normative Elements

As the special conception in the criminal law,the normative elements show more flexibility,and it injects more energy to the inflexible law,and its judicial interpretation way also need to different from the traditional way.However,the normative elements can not bear to a reasonable interpretation task according to the judicial interpretation methods in our country now,how to ensure an accurate definition of the normative elements furthest and keep a minimally objectivity is an important question in the theory and practice circle.There has a research in this artical which aims to make a profit.The article is divided into the following five chapters:The first chapter is the introduction.It's mainly introduced the background and significance of the thesis.Then,comparing the different of the research at home and abroad,and briefing it.Finally,it also mentioned the research ideas and methods,innovation and deficiencies.The second chapter defines the normative elements,and clarifies its basic concepts,characteristics and types.The author thinks that the normative elements need other social norms' help,the normative elements are open and objective,they can be classified into the legal specification,the habits specification and the moral one.The third chapter mainly expounds the present judicial interpretations and the deficiencies among them in China.At present,the judicial interpretation of the elements in our country mainly includes judicial explanation and judge's discretionary.In the case of judicial explanation,there exists some defects such as unreasonable source of judicial interpretation,unclear main body and the legislative content.As for the judge's discretionary,judges are susceptible during the exercise of power and the judgment is briefness,that impacts the apply of the judge's right about the normative elements.The fourth chapter deals with the theory building of the judicial interpretation of the normative elements.Under the system of crime in our country,the judicial interpretation of the normative elements need to combine the formalistic interpretation theory and the substantial interpretation theory,make the substantial interpretation conclusions strictly accept the formalistic interpretation's test is more suitable for the judicial interpretation now.Chapter 5 gives out the perfection of the judicial interpretation of the normative elements.To distinguish the interpretation way and focus on the positive role in the different interpretation methods in different interpretation ways,to strengthen the enlightenment of the formalistic interpretation theory to the judicial explanation and the micro-guidance of the substantial interpretation theory to the discretionary power,and balance the relationship between judicial explanation and discretionary power,which are perfect ways to correct the present judicial interpretations of the normative elements in China.