Viewing On The Judicial Expansion Of Criminal Law And Its Limitation

With the further deepening of China's marketization,the society is also in an important deep-water period in which huge risks coexist with transformation.Economic and social development has also brought new harmful behaviors that emerge in endlessly.It has brought great legal impact to the originally stable legal system and posed a severe test to the construction of our country's legal system.Under the pressure of political policies and governance effects,people gradually forget the last resort feature of criminal law and apply it more and more widely to solve various problems in social governance.However,the degree of criminal intervention in social control has been continuously strengthened,and the boundary of the target of penalty protection has also become uncertain.Some people are even punished for crimes based on realistic reasons such as quelling public opinion,thus deviating from the fundamental essence of a legally prescribed punishment for a crime.Under the guidance of some inherent conviction thinking,it is more convenient for the judicial organs to incriminate crimes.The judicial personnel did not fully follow the interpretation logic of a legally prescribed punishment for a specified crime in their interpretation.Instead,they considered the harmfulness of the behavior with the preconceived idea,and then they could incriminate the behavior they wish to punish with interpretation supplemented by guiding blessing,which has the meaning of "if they want to incriminate crimes,they can easily find a dog." As long as sufficient evidence is provided and strong public policies are supported,more than 400 crimes "always have a suitable one for you",and more and more dangerous steps have been taken in the boundary between violation of law and crime.Judicial interpretation should have been the interpretation and explanation of the law,but now it has evolved into a creative activity of bringing forth new ideas and innovations.Some provisions have broken through the boundary of a legally prescribed punishment for a specified crime and started a new "legislation".Some scholars even think that the judiciary has already acquired the supplementary power to the legislature to enact laws,which is the "judicial legislative power" between legislative power and judicial power.In fact,the act of promulgating judicial interpretation in the application of laws by the supreme law and the supreme prosecutor is a part of judicial practice.This article studies these two parts as a phenomenon of interpretation expansion in the judiciary.To sum up,the interpretation of criminal law mentioned in this articleincludes not only the applicable interpretation of criminal law in the judgment of individual cases by the judiciary,but also the abstract expression issued by the judiciary in the form of normative documents.The governance experience shows that the exertion of penalty can effectively establish the authority of public power,but this exertion is at the expense of some rights and freedoms of citizens,so it is necessary to restrict power in a "cage" with a legally prescribed punishment for a crime.However,once the penalty is used without restriction in the administration of justice,the trend of arbitrary incrimination becomes more and more obvious,and it is also fundamentally different from the principle of legality,which requires the law to exercise restraint in the interference of citizens' freedom and rights and to have a limited agreement.Therefore,this article analyzes the manifestation of criminal law expansion and its impact on a legally prescribed punishment for a specified crime,and focuses on how the judicial organs,as interpreters,will deal with this trend in the future.The article is more than 60,000 words in length and is divided into five chapters.The first chapter introduces the purpose,process and method of topic selection,as well as the review of academic history and literature review in the research field of the thesis,and elaborates the topic selection of the thesis.The second chapter introduces the game between interpretation and legally prescribed punishment in judicial application.At present,criminal law has shown great "tolerance" in dealing with the endless social problems.From the judicial interpretation,it can be seen that the promulgator is subjective and incriminated.From the case judgment,it can also be seen that the practitioner seeks his own inner and subjective interpretation,constantly testing the boundaries of criminal law.Some are playing the "edge ball" of criminal law interpretation,while others are quietly breaking through the principle of legality.This article holds that criminal law interpretation,as the basic channel to implement a legally prescribed punishment for a specified crime,must strictly abide by the interpretation rules and follow the guiding principles of "the meaning of a crime,the value of a crime,the legality of a crime,and the reasonableness of a crime".It cannot be ambiguous between expanding interpretation and analogy interpretation,and between a crime and a crime.The third chapter follows the above and sums up the manifestations and characteristics of the expansion of criminal law application in judicial practice through the constituent elements and other factors.It gives examples of a largenumber of cases in the judicial application of criminal law in many aspects,such as subject accomplice,subjective motive,criminal object,behavior mode,harmful results and the provisions covering the bottom.It reveals that the expansionary and even legislative impulse expansion of criminal law has penetrated into all aspects,enhancing the rationality of the article and criticizing the inappropriateness in time.The fourth chapter focuses on exploring the causes of the current criminal law judicial expansion.It points out that the current criminal law expansion has the realistic needs of risk control from the internal mechanism and external causes,but it also hides the threat of a legally prescribed punishment for a specified crime.Under the comprehensive effect of various reasons,the omnipotence of punishment is on the rise,making it more difficult to distinguish illegal acts from crimes,and the phenomenon of pocketing charges is becoming more serious.Therefore,this phenomenon must be curbed.The fifth chapter puts forward the way to deal with the criminal expansion.First,from the perspective of philosophy,it finds that philosophical hermeneutics and legal interpretation have profound homology,and under the guiding principle of objective understanding of philosophy,it puts forward some suggestions such as restrictive interpretation and high standard reasoning requirements from the perspective of judicial organs.Secondly,we should clarify the limits of interpretation,put forward the dualistic standard theory,and judge the articles simultaneously from the two aspects of meaning and value.In the end,I also summarized four other suggestions,hoping to achieve governance by various means and set a reasonable scope of judicial interpretation.