Dispute Between Formal Interpretation And Substantive Interpretation And The Choice Of Them

In recent years,in the study of interpretation of criminal law,there have been arguments between formal and substantive interpretation.However,it is difficult for bystanders to understand the essence of the argument because of the confusion of concept application and misreading of each other's viewpoints.This argument originated from the criticism by the substantive interpretation.At this stage,the formal interpretation is understood as legalistic mechanism and the continuation of the development of the subjective theory in the context of western hermeneutics.Therefore,the development of western hermeneutics and the evolution of theory have become a powerful weapon of argumentation for substantive interpretation.With the deepening of the controversy and the theoretical counterattack initiated by the formal interpretation,the controversy is fixed in the two dimensions of the theory of formal crime and the theory of substantive crime,and of the value choice between the protection of human rights and the protection of legal interests.When the two concepts of "explanation" and "judgment" are equal,scholars tend to classify the opposing essence as the argument between formal crime theory and substantive crime theory.However,this part of scholars only pay attention to the difference between the theory of formal crime and the theory of substantive crime,and do not see that the essence of the theory is also the argument of the choice of value orientation between the protection of human rights and the protection of legal interests.This is the core of the two opposing interpretations.The choice of the theory system of crime constitution and the system of hierarchical crime theory is the direct reason of this controversy,and the mechanism behind it is the difference in the understanding of the function of criminal law in the judicial concepts of China and the West.The viewpoint of substantive interpretation theory has double defects in logic and fundamental position.Therefore,we should adhere to the basic position of formal interpretation.In order to realize the theory of formal interpretation and modern rule of law,it is necessary to improve the theory system of crime constitution,and pay attention to balance between formal interpretation and Chinese traditional concept of justice.