The Legitimacy Of "The Restriction On The Determination Of A Crime By The Statutory Penalty" And Its Judicial Expansion

From the perspective of traditional theory,the two categories of punishment and crime follow the causal relationship of "Crime determines the penalty".Under such conviction logic "crime" has an absolute dominating effect on "penalty".However,the single criterion of criminal compositionas the sole criterion for evaluating crime does not completely solve the difficult problems encountered in judicial practice.The contradiction between the accuracy of conviction and the reasonableness of sentencing is difficult to resolve.Starting with the "Xu Ting case",the judicial logic of "the restriction on the determination of a crime by the statutory penalty" has been re-disclosed:If the rules of criminal law doctrine are strictly followed to find the constituent elements corresponding to the facts of behavior,the problem of unbalanced crimes may arise,and there is a complex intertwined relationship between the criminal law norms and the facts of the case.The same criminal facts may correspond to the choice of multiple scholastically allowed.At this time,it is possible to take the appropriateness of the sentencing.The choice of multiple criminal compositionasis more appropriate to explain and apply,so as to achieve the justice of the case.In this process,the penalty is no longer just a negative consequence of the crime.The conviction is no longer a one-way to sentence.The sentence of "Crime determines the penalty" is no longer the exclusive exclusivity of the relationship between crimes and punishments.The new situation of crime and punishment in the two-way interaction between crime and punishment has been discovered,and the penalty also has the meaning of restricting conviction.The principle of suiting punishment to crimeis the substantive aspect of the principle of a legally prescribed punishment for a crime.The synergy between the two determines the two-way nature of the relationship between crimes and punishments.However,the way of thinking of "the restriction on the determination of a crime by the statutory penalty" can be applied to the perpetrators,and what penalties and penalties apply.The judgment of the effect is actually affecting the referee's identification of the nature of the harmful behavior,directly affecting the choice of the specific act guilty or guilty and the sinful choice of the accusation,but has no problem in realizing the principle of adapting the crime and punishment.The relative stability of the penalty makes it possible to play the role of the"Coordinate of the conviction".The consideration of the appropriateness of the penalty can achieve the purpose of easing the penalty and achieving the balance of crime and punishment,and help to solve the conviction of difficult cases.The problem is conducive to the openness of doctrine and the realization of fair value.Therefore,it has a function of bridging the gap between the judgment function of the traditional criminal law and the function of the normative evaluation.From the perspective of thinking mode and legal argumentation,it plays a corrective role in the premise and thinking mode of "three-segment theory".In practice,it has deep connection with the criminal judge's professional psychology and reality.The practical discourse of the Chinese professional judge represented by "criminal crime"is a useful attempt to achieve "breakthrough" of localized legal knowledge.In the process of judges' refereeing,the consideration should be based on the punishment:first,the question of whether "shall be punished by punishment" should be distinguished from "crime and non-crime";secondly,consider the "appropriateness of penalty punishment",specifically It is to emphasize that the statutory penalty is based on the "rights" to determine the appropriate crime,that is,to distinguish between "this crime and the crime";third,according to the needs of the actual crime prevention purposes,especially for the special needs of the criminals to adjust the statutory penalty Applicable to determine the appropriate declaration of punishment.The two-way interaction between crimes and punishments is general and universal.Therefore,whether it is the disorder of the relationship between crimes and crimes caused by the ambiguity of the law,or the difficulty in choosing the crimes of sin and non-crime,this crime and the crime of sin In the case of unreasonable sentencing,the refereeing method of "criminal crimes" can be applied.The penalty element is essentially a positive explanatory factor.It plays a basic role of pointing and reference,suggesting in which direction the judge should couple the criminal fact with the legal norm:the necessity and rationality of applying the penalty As an explanatory factor,the substantive interpretation of the constitution of crime constitutes a substantive interpretation.Therefore,the practical application relies heavily on legal interpretation techniques.