Research On Systematic Application Of Criminal Law Provisions

The application of criminal law provisions is the deductive process of judicial syllogism,which is about to combine the criminal law norm of criminal law provisions with the facts and circumstances from specific case,thus the result of combining reason and law is drawn.However,there are two misconceptions in the application of the criminal law: the incomplete application of legal norms and the incomplete extraction of factual circumstances.This leads to the deviation of the applicable result of criminal law from reason,and leads to the judicial dilemma of convicting people with drunk driving without exception,or the case of Xu Ting's malicious withdrawal of money,etc.In order to correct this misconception,this paper centers on the legal basis and factual basis of the application of criminal law provisions,based on the deductive logic of the legal application of syllogism,This paper puts forward a systematic method of integrating ontology,systematism and dialectics,in order to solve the problem through the systematic application of criminal law provisions.The full paper is divided into five parts:The first part,"The Basic Definition of Systematic Application of Criminal Law Provisions",mainly focuses on the basic concepts of system application of criminal law provisions and relevant analysis.The former understands the criminal law provisions from three aspects: existence form,relevant explanation and judicial effect.From the perspective of judicial syllogism,we can understand the system application of criminal law provisions from three aspects: ontology,entirety and dialectics.The latter mainly clarifies the relationship between criminal law provisions,criminal law norms,criminal law theories,and the relationship between systematic application and system interpretation,criminal integration.The second part,"The Existing Misunderstanding of the Application of Criminal Law Provisions",mainly revolves around the legal basis and factual basis of the application of criminal law provisions in two aspects.The former is the incomplete application of criminal law norms,including the explicit incomplete application of criminal law provisions that do not conform to the integral structure of effective norms,and the implicit incomplete application of criminal law theories derived from incomplete norms as a legal basis.The latter is mainly shown in the determination of result crime,amount crime and behavior crime.Single plot element is used instead of entire plot to judge the social harmfulness of the crimeand the personal dangerousness of the offender,thus the one-sided conclusion of the crime is established.The third part,"Theoretical Foundation of Systematic Application of Criminal Law Provisions",mainly focuses on four aspects: system theory,materialist dialectics,legal dogmatics and legal order.First of all,the holistic principle of systematism emphasizes the concern for mutual restraint and interconnection between the provisions of the criminal law and the provisions of the criminal law as a whole and a part thereof.The article of criminal law is understood and applied with the integrative thinking of "whole-isolated-whole".Secondly,the dialectical thinking of materialist dialectics emphasizes that the problems in criminal law should be viewed from the perspective of unity of opposites,concrete analysis of practical problems,dynamic vision of mutual change of quality and development perspective of keeping pace with the times.Moreover,the systematic approach of legal dogmatics emphasizes respecting the national subjectivity of the existing positive legal order,combining empirical facts and value judgment,the legal interpretation of criminal law provisions within the legal order system is systematized.Finally,the stability of the legal order requires that the application of the provisions of the criminal law must be put in the system of civil-administrative-criminal law of China for the comprehensive understanding and application of the three legal systems,Both the last resort of criminal law and the stability and coordination of law order are taken into account.The fourth part,"The Basic Path of Systematic Application of Criminal Law Provisions",mainly focuses on the thinking mode,internal idea and logical structure of system application of criminal law provisions.The mode of thinking should adopt the system thinking of "whole-isolated-whole" and the dialectical thinking of "one body,two sides and three perspectives".The internal idea should adhere to the systematic understanding of the restraint of criminal law,the systematic understanding of the general provisions of criminal law and the systematic understanding of the internal relations of the basic principles of criminal law.The logical structure should have three stages,that is,the complete application of the legal norms should be carried out on the premise,the full extraction of the factual circumstances should be realized on the minor premise,and the comprehensive demonstration of the symbiosis of theory and law should be realized in the conclusion.The fifth part "The Practical Test of the Systematic Application of Criminal Law Provisions",which mainly focuses on the application and test of the system of criminal lawprovisions in the conviction of drunk driving.First of all,the article of criminal law should be combed around the presumptive conditions,behavior patterns and legal consequences of the crime of drunk driving,as well as the relevant judicial interpretation,criminal procedure and non-criminal law provisions of the relevant rights to make a review.Secondly,according to the social harmfulness of behavior and the personal dangerousness of the offender,list a comprehensive extraction of the factual circumstances in the case.Finally,based on the reasonable and legal principles,make a judgement in the specific cases such as moving vehicles in the small area in the drunk status.