Problems And Solutions On Blank Description Of Crime And Its Interpretation

As a product of the development of the relative principle of a legally prescribed punishment for a specified crime,the appearance of the blank description of crime is inevitable.But because of its representation in the criminal law provisions on specific constitutive act elements of crime is not clear and requires reference to other laws and regulations,which makes the rationality of the existence of the blank description of crime suffered many questions.How can the challenge of the principle of a legally prescribed punishment for a specified crime be resolved through the correct interpretation of the judicial application? This is the very core of this study.By analyzing the interpreting dilemma of the blank description of crime in the judicial practice,the author sums up the causes of the plausibility of the blank description of crime and concludes the correct explanation path which meets the requirements of the principle of a legally prescribed punishment for a specified crime.It is the purpose of this study.This paper is divided into three parts,to discuss the blank description of crime and its interpretation in our country.The first part is the study of the blank description of crime itself.First of all,the blank description of crime exists in specific provisions of criminal law in our country,which is to describe the specific composition of a crime performance.By comparing the differences in the definition of the blank description of crime,it can be seen that the characteristic of the blank description of crime is that specific constitutive elements of crime need to be determined by reference to other non-criminal legal norms.Therefore,the definition of the blank description of crime should be the specific types of statements adopted by the legislator in specific provisions of criminal law to describe the specific constitutive elements of crime in which the act elements require to be related to determined by reference to other relevant norms.Secondly,on the basis of the clear definition of the blank description of crime,it is necessary to further clarify the current situation of the legislation of the blank description of crime in order to clarify the scope of the blank description of crime discussed in this paper.To this end,according to the characteristics of the blank description of crime,the author sums up the identification of the blank description of crime in order to filter out our criminal law on the blank description of crime.The legal provisions of the blank description of crime come to 46,which mainly distributed in the criminal law of Chapter II "crimes against public safety ",Chapter III " the crime of undermining the socialist market economic order " and Chapter ? " the crime of obstruction of social management ".Thirdly,the four characteristics of the blank description of crime are put forward: the diversity of the form of expression,the double illegality of the structure,the coexistence of independence and dependency,and the ambiguity of the expression of the words.Finally,from the analysis of the causes and development process of the blank description of crime,the establishment of the blank description of crime is still necessary because it is the product of the relative principle of a legally prescribed punishment for a specified crime and the necessity of keeping the stability and inclusiveness of the criminal law.The second part mainly discusses the plight of the blank description of crime in the judicial application.From the relationship between the blank description of crime and the principle of legality,it is not a fundamental violation of the legal exclusive nature,the principle of democracy and the principle of clarity.The real problem is still the wrong way in the judicial practice.Thus,the author puts forward that the explanation of the blank crime in judicial practice exists improperly enlarges the scope of the reference norm and the lack of the judgment of the independence of the criminal law.The reason for the above-mentioned predicament lies not in the legislation itself,but rather in the judicial application Lack of initiative and the neglect of legal interests protection.The third part is the exploration of the path of the blank description of crime.In order to eliminate the conflict between the blank description of crime and the principle of legality,and to get rid of the explanatory dilemma in the application of the judicial interpretation.In the dispute between the theory of substantive interpretation and formal interpretation,the author finds that the fundamental difference between the two interpretations is the principle of legality and the principle of legal interests protection considered overall different,in which formal interpretation takes the principle of legality as a priority,while substantive interpretation firstly considers the principle of legal interests protection.Because the substantive interpretation can not solve its problem of how to judge the necessity of punishment in line with the possibility of national prediction,there is the risk of analogical interpretation.Therefore,the author thinks that it is more reasonable to use the form interpretation as the blank description of crime explanation.Based on the above position,this paper argues that the interpretation of the blank description of crime should be judged by the independence of the interpretation of criminal law.It should be considered as the necessary consideration of the infringement of legal interests.It should pay attention to the use of congenial interpretation rules and adhere to the principle of application of the old law with the exception of a less punishment in the new law in the reference to the norms.