Practical Research On The Criminalization Of Criminal Policy

The relationship between criminal policy and criminal law has always been a major concern in the study of criminal law.In recent years,with the dissemination and influence of the German academic proposition,on the ground,the more and more scholars pay more attention to the relationship between the two at the judicial level.A basic judgment is that even in the judiciary,the criminal policy is an unavoidable and indispensable parameter in the practice of criminal law.Meanwhile,the criminal law and the normative jurisprudence that starts from it have restrictions on criminal policy.How the criminal policy affects the judicial practice and whether these influences are permitted by the criminal law or not and how they should try to limit the criminal law should undoubtedly have considerable theoretical and practical value and are the main contents of this article.The logic of this article is to first clarify some of the basic concepts associated with this article,laying the necessary foundation for subsequent interpretation and argumentation,while defining some of the discussion on this article,the research and analysis of the limited areas of this paper.And then sort out the real level,how the criminal policy through judicial interpretation in what extent and to what extent on the judicial practice of what specific impact.Then,combined with the principles and provisions of criminal law,it prescribes the general proposition of criminal law,analyzes and comments on the practical impact of criminal law criminalization,and reviews the advantages and disadvantages of gains and losses.On the basis of this,in view of the biased aspect of criminal policy infiltration in judicial interpretation,trying to explore ways to regulate it to promote the practical influence of criminal policy through judicial interpretation can play a reasonable role within the boundaries of criminal law.The structure of the paper and the main contents are as follows:The first chapter clarifies the meaning of "criminal policy" referred to in this paper and the reason of selecting judicial interpretation as the research sample.On the first point,we can see from the academic history of the term "criminal policy" that the criminal policy has always been difficult to cut the companionship with the criminal law and always has the value of judging whether the act has the criminal punitiveness.Since the criminal policy and its knowledge system were introduced into our country,our academic circles have been studying on the basis of different degrees of generalization,but they have not changed the above two characteristics.Therefore,although the specific meaning of "criminal policy" is divided in content,its meaning is stable from the methodological point of view.Criminal policy is the value judgment of whether a certain act has the penalty of criminal punishment.This article also takes this as the starting point of the whole article.On the second point,the study,theorization and abstraction of criminal law in the criminal law,especially the criminal law practice in our academic circles are overcompensated with the extremely practical nature of the criminal policy itself.Due attention and research on this topic.It is a more ideal research sample to start the research from the real level,the mission statement of judicial interpretation,the basic meaning,the limited quantity and the position of practice.In the second chapter,taking the "interpretation" type judicial interpretation involving the entity such as conviction and sentencing as the sample,and using the class crime theory as the classification basis,how to carry out the criminalization practice that the criminal policy is based on the judicial interpretation? In the current judicial interpretation,criminal policy is reflected in both the crime and the punishment.As far as "sin" is concerned,criminal policy has penetrated into all levelsof judging whether a crime has been established or not.The unscrupulous class is manifested as: the elements of the constituent elements of staggered to expand the interpretation of narrowing the interpretation of the causal relationship between the judgment of the subjectivity.In the guilty class,it is manifested in the fact that the subjective factors prove that the presumption technology is extensively used and shows a tendency of dispersion.At the same time,the expectancy possibility theory is also absorbed to a limited extent.In the cause of the crime mainly manifested the provisions of the type of the provisions of the provisions of the proviso.As far as the "penalty" is concerned,the infiltration of criminal policies is mainly done in a way that violates the penal system and the imposing penalties in overhead legislation.In the third chapter,with the basic principles of criminal law,specific provisions and some popular criminal law theory as a yardstick,the specific analysis of the criminal law in Chapter II,the infiltration of judicial interpretation and the relationship between criminal law.When criminal judgments are used as a channel to output value judgments,the relationship between them shows different trends: on the one hand,the two can interact well with each other,while the former can serve the boundaries demarcated by the real law and the normative law Can exert the guiding function and participate in shaping the theory itself when there is uncertainty in the theory itself.On the other hand,both of them also often occur in different ways.The main manifestations are that the judicial interpretation constantly punishes the crime and punishment when it comes to the criminal policy The statutory principle appears to be very conservative in the effects and ways of the act of excuse.Overlaying the precautionary principle of penalty in many detailed penalties and disregarding the basic position of the law of practice and normative jurisprudence on these issues.In the forth chapter for the third chapter summarized,the criminal policy in the judicial interpretation to complete its practical transformation process of misconduct,put forward some regulatory ideas,in order to improve the process and avoid weaknesses.Due to the need of judging the value of criminal policy,the norm main body only emphasizes on the preventive function of penalty in the judicial interpretation,and further stipulates the legal principle of punishing crime andpunishment.In the value aspect,the standard subject should properly handle the relationship between the three categories of value categories such as criminal regulation and freedom,general justice and individual justice,old and new values,etc.,so as to ensure that necessary Punitive value judgment itself can be established.Within the judicial interpretation,the restrictions on the prevention function of criminal law should be strengthened and the restrictions come from the statutory principle of crime and penalty: the restrictions on the function of penalty prevention mainly restrict the general prevention by special prevention and control the special prevention and general prevention by liability;The legal principle of the restrictions,mainly to prohibit the analogy and strengthen the clarity of two points.To prohibit the application of analogy,the need to set up two safety valves: First,the interpretation of the terms of criminal law,based on the objective interpretation of the position of the criminal law terminology "contemporaneous"-consistent contemporary understanding of the language habits Or the standard of any one of the provisions of the antecedent law of the times interpretation,to eliminate the analogical interpretation in such a way that it expands the scope of the explanation for existence.Second,strengthening the role of the language / grammatical structure of Chinese in the explanation of the arts and culture on the basis of judging whether it is the contemporary language habit or normal understanding.On the issue of enhancing the clarity,according to the task of judicial interpretation,the ambiguity that can not be exacerbated or even made in the criminal law can be referred to as the baseline of this requirement in the implementation of the needs of criminal policy.First,we need to strengthen the supervision of the external power on the judicial power which is manifested in the judicial interpretation.Second,we should activate the legislative interpretation,interpret the objectively carrying punishment objectively required by the criminal policy with legislation,The tension in the Penal Law Institute has been moderated slightly.