On Legal Fiction In Criminal Law

Legal fiction is a long-standing legal phenomenon.Its expression can be traced back to the ancient Roman period.However,the rationality of its existence has been widely controversial.Opponents such as Bacon believe that the legal fiction is " a plague,a syphilis" and "the most harmful,lowest-level lie",and "that in order to achieve justice is tantamount to commercial fraud," while supporters believe that "law If there is no fiction,it will be at least half lesser as fascinating." The most fundamental problem in the study of legal fiction is the discussion of its legitimacy.In the field of criminal law,due to the special requirements of the concepts of human rights protection,no penalty without a law,and suppression of criminal law,the legitimacy requirements for legal fiction are particularly strict.The legal system is different from the general formal logic.It breaks through the most basic typed thinking in the criminal law punishment,and realizes a huge leap of things of different natures.The academic circles' previous discussions on their legitimacy focused on the functional theory.They believed that the legal system can play a role in filling legal loopholes and effectively implementing criminal policies.Therefore,its existence has a reasonable foundation.However,it has not proved from the perspective of ontology into its legitimacy.Based on the analysis of the meaning of legal fiction,this paper takes the evaluation of the existing legal fiction theory as the starting point,and then proves its legitimacy from the dual perspectives of ontology and function theory,and then proposes the law-making criteria in order to sort out the current criminal law norms in China,point out the existing problems and put forward the relevant solution.The full text is about 45,000 words.In addition to the introduction and conclusion,it is divided into the following four parts.The first part: the meaning of legal fiction in criminal law and the analysis of related concepts.Fiction is a kind of thinking that exists widely in human thinking activities.The legal fiction in criminal law is a product of the "fictional" way of thinking mapped into the field of criminal law.Legal fiction in criminal law is a kind of legislative method or a kind of legislative technology.It is essentially a kind of legislative analogy.Its object should be limited to certain similarities,but essentially belong to two different things.The focus is not on changing the identification of facts,but on "thinking" of the above-mentioned two things and giving the same legal effect,and this legal effect cannot be refuted.Note that the distinction between attention-getting regulations and legal fiction lies in the essential difference between the objects regulated by the provisions;the transformation of offenses and legal fiction is the relationship between results and processes,and the transformation of offenses is the result,and the way of its realization is legal fiction;The legalized crime and the judged crime also reflect the thinking of legal fiction at the methodological level.The second part: the rationality evaluation of legal fiction in criminal law.The realistic basis and theoretical basis put forward by the current academic circles are not enough to support the legitimacy of legal imitation in criminal law.The legal formulation in the criminal law does not necessarily violate or meet the requirements of the principle of a no penalty without a law and the principle of proportionality between a crime and punishment.The key point is that the specific setting of the legal fiction clause must be subject to certain restrictions and must conform to the purpose of the norm.From the perspective of ontology,legal fiction violates the most basic formal logic,which is inherently bad and has a huge risk of expansion;from the perspective of function theory,legal fiction is a double-edged sword.On the one hand,it may become a tool for legislators to arbitrarily exercise the power;on the other hand,it can be used as a technology to fill,perfect the criminal law network,and achieve the normative purpose that formal logic cannot realize.The third part: the setting standards of legal fiction in criminal law and the combing of China's criminal law norms.The establishment of the legal fiction clause needs to go through the "similar-equal-necessary" judgment process: the judgment of the similarity of the proposed object is the premise of the legal fiction,and the judgment of the equivalent is the object to be drafted.The key point of the reference object is one of the sources of its rationality.The judgment of necessity is to further ensure the rationality of the establishment of the legal fiction clause,and avoid the adverse effect on the basic formal logic of the criminal law by the excessive legal fiction clauses.There are a large number of legal fiction clauses in China's criminal legal norms,which are distributed throughout the general rules and sub-rules.The fourth part: the problems in the legal fiction clauses in China's criminal law and the solutions.The phenomena of legal fiction in China's criminal law ranges fromthe judicial interpretation,randomness of some of the proposed terms,and the unclearness of semantics of the proposed terms.It is necessary to comb the current criminal legal norms,eliminate the fictitious clauses that are not quite necessary and necessary,and clarify the existing fictitious clauses with unclear semantics.It is necessary to standardize the setting procedures of legal fiction,and to fully demonstrate the rationalization of its settings,and to guide the specific judicial application in the form of explanation.