Research On The Legitimacy Of Criminal Law' Legal Fiction

Criminal Law' legal fiction is that the legislator considers the criminal policy or other value intention,and intends to treat different criminal elements equally,and the criminal legislation activities of different treatment of the same criminal elements.The legitimacy of the criminal law is that the criminal law can satisfy the ideal state of the criminal law,have the formal legality,and pursue the justice as the value orientation,and the legislator creates the self-evidence of the criminal law.Since the introduction of the criminal code,the legitimacy of the law is controversial.There is a negation and affirmation in the academic world.The negative view mainly includes:first,the criminal law has violated the principle of legality.Second,the criminal law system destroys the crime constitution theory.Third,criminal law is proposed to increase the cost of criminal law.For the in-depth analysis of the negative theory,we can also draw the following conclusions:a criminal law is designed to comply with the statutory principle of criminal punishment.The criminal law formulation conforms to the theory of criminal constitution.Three penal codes do not increase the cost of criminal law.The criminal law system not only does not negate the value of the existence,but argues that the legitimacy of the criminal law is well-founded.First,artificial with criminal law based on the legitimacy of law lies in:lawmakers for realizing the equilibrium of the offense and target,implement the criminal policy of combining and practicing the concept of human rights protection needs to create the drafting of the criminal law.Secondly,the legislative basis of the legitimacy of the criminal law is that it can satisfy the legislator to maintain the stability of the criminal law and avoid the onerous requirements of the law.Finally,the legitimacy of the criminal law is based on its ability to meet the needs of lawmakers to solve judicial problems.Artificial legitimacy of criminal law is highly critical,because lawmakers not artificial,and improper artificial law in our country criminal law has embodied more,and have negative effects on the criminal law,in order to reduce the negative impact of criminal law by artificial improper,put forward the following methods:first,abide by the artificial should follow the principle of criminal law.Secondly,the scope and constitutive elements of the proposed criminal law are clarified.Third,set up the criminal law to formulate the post-supervision procedures.