Reaserch On The Legal Fiction System Of Criminal Law In China

Legal fiction is a "hidden" concept,it has not attracted enough attention in the legal theory research although playing an irreplaceable role in the legislative activities of legal fiction.The reach of China's legal circles on the legal fiction research is not systematic,as well as in-depth.The reason,for one part is that the "functionalism" tendency of the legal fiction is too serious,while the the dominant view of legislation of criminal policy value drives the scholars tend to search the appropriatenes of the legal fiction with the method of law hermeneutics,instead of rethinking the rationality with the critical eyes.For the other part is that the scholars usually study separately and tend to make out a good case for themselves,without the systemical deeply and all round analysis.However,the systemical deeply research on legal fiction has important significance.The study on the ontology such as the conception affect our grounding cognition of legal fiction.The skimble-scamble viewpiont is on direct reason of the separate study.The axiology is the core areas of legal fiction application,most of the improper fiction are derived from the legislators' misconduct value choice.Taking history as guidance and look into the future is a critical method.Study on the development theory,is benificial to provide ideas and approaches for legal fiction application,whlie carding the development thought is beneficial to enrich the thickness and depth of the theory research.Combing the provisions of the legal fiction in current criminal law of our country,is advantageous to analyse the legal fiction in the macro and micro aspect,provide a foundation to reflect and prospect it.This is the inner logic and the hope of this thesis.The criminal law is a kind of "different equivalent fictitious decisions as",as a kind of implementing criminal policy,guarantee the balance of crime and improve legislation of criminal law,has the unique value and significance of its existence.This paper consists of four parts.The first part mainly discusses the connotation of legal fiction and extension of the concept,analyzes its basic characteristic,for the study of criminal law to make the upholstery;the second part of the detailed analysis of China's criminal code in general and specific provisions of legal fiction,the history of the development of foreign law system to compare the longitudinal and cross,reflect the legal fiction in China's criminal law value;the third part through the analysis of the legal fiction in the value of the existence of the legal fiction game on the legitimacy of criminal law in our country and the law system in the presence of improper performance;the fourth part on the basis of the third part,the legal theory analysis of legal system of quasi prepare the improper causes,and put forward the law system should follow the principles and procedures.In this paper,we reviewed the application of criminal legal fiction,and puts forward the prospect of law system,based on value theory as a guide,for reference to the legal fiction phenomenon,and concerned the phenomenon of criminal legal fiction in the current criminal law as the object of this study.