Discussion On The Judicial Interpretation Rules Under The Expansion Of Miscellaneous Provisions

After the promulgation of the Criminal Law in 1979,there were widespread problems in the judicial practice of hooliganism,crime of speculation,and other crimes.Therefore,the legislators made great efforts to abolish and reduce pocket crimes when the 1997 Criminal Law was amended.However,in order to cope with various situations in the period of social transformation,to realize the strict criminal law network,to intercept crimes,and to protect the legal interests,there are still a large number of provisions in the criminal law of our country.This is under the centralist concept of criminal legislation order formed by the influence of severe punishment and instrumentalism culture for thousands of years in China,legislators made positive choices based on criminal policies.As a legislative technique,the existence of the stipulations of the stipulations is understandable.However,in recent years,under the joint efforts of the judicial interpretation of our country and the active application of the judges,the crimes of the stipulations have been continuously expanded,so that these crimes have a tendency to move from expansion to variability.And in the practice of judicial application,there is a general trend,which has greatly hindered the process of rule of law in China.Some crimes have even become "pocket crimes" and have been questioned and criticized by the academic circles.As the most stringent legal sanction method,punishment can restrict or deprive major interests such as property,freedom,qualifications and even life.In the legislation,its normative content must be clear so that people can understand and guide themselves before the behavior.However, the judicial chaos have to ask questions: What are the reasons and values of the terms? How should the terms and conditions be defined and classified? Does the bottom clause violate the principle of legality of the crime and thus is not clear? Why is the cause of pocketing tendency?How should we explain and apply the terms of the pocket? How to solve the problem of the pocketing tendency of the current pockets is an urgent issue to be explored.With a series of confusions,after combining the academic concept with the definition of the relevant concepts of the stipulations,the author tries to find out the dilemma of the pocketing tendency is not because the stipulations violate the principle of criminal law,but the root cause is the drawbacks of judicial interpretation in the process of the bottom clause.In the face of the necessity of the right clause and the importance of judicial interpretation in the reasonable and accurate application of the provisions,we strive to analyze the judicial interpretation concept and judicial interpretation methods,and improve the judicial interpretation method to achieve the maximum clarity of the terms.The first chapter of the article provides a basic overview of the terms of the pocket.By defining the connotation and classification of the terms of the pocket,the reasons for the existence of the pocket clause are explored,and the functional value of the clause is found.The setting is inevitable and through the analysis of the serious expansion of the terms of the pocket,the abuse of the right to penalties,the application of the provisions of the law,such as the inconsistent application of the judicial practice,the following issues related to the basic provisions of the article will be explored.The second chapter studies the clarity of the terms of the pocket.Many scholars believe that the existence of a large number of pocket terms is one of the important factors that can not achieve the clarity of criminal law.Therefore,starting from the value orientation of the principle of a legally prescribed punishment for a crime,combing and discerning the relationship between the pocket terms and the principle of clarity,there is no absolute clarity,and the provisions of the bottom are in line with the maximum possible clarity.It is also suggested that the pocketing tendency of the pocket clause should be attributed to the judicial interpretation,and the judicial interpretation should be used as a breakthrough to solve the pocketing phenomenon of the pocket clause.As Professor Zhang Mingkai said,the so-called criminal law flaws are mostly appeared by the interpreters' explanation,not the criminal law itself.The third chapter analyzes the existing problems of judicial interpretation.Judicial interpretation is an important means to maintain the explicit requirements of the criminal law.In the process of applying the bottom clause,the judicial interpretation is faced with difficulties.It is mainly reflected in the guiding ideology that still has the concept of “severe punishment” and “heavy punishment” and the chaotic application.It is suggested that the correct interpretation of ideas and interpretation of positions and appropriate interpretation methods and rules should be in place in order to produce correct judicial interpretation conclusions.By analyzing the shortcomings of the existing judicial interpretation concepts and homogeneity interpretation methods,how to improve it follows up.The fourth chapter carries out specific judicial interpretation improvement.First of all,from the perspective of the basic ideas that judicial interpretation should uphold,it is proposed that the criminal law should be adhered to in the specific application process of the bottom stipulations,and the substantive interpretation should be used as a methodology under the premise of strict interpretation.Starting from the specific interpretation method,we study how to improve the homogeneity interpretation method,and combine the steps of the criminal law interpretation method to make up for the deficiency of the specific interpretation rules.