Normalize And Utilize Legal Fictions In Criminal Law

The legal fiction in criminal law is a kind of special provision with a unique and standardized structure.It consists of the constituent facts to be fictionalized、the constituent facts of the basic provisions and the same criminal normative purpose.The first two are led to the same legal consequence by the third one.And the same purpose for protection of legal interests is the basic and core part of the legal fiction.In the context of statutory law and modern criminal rule of law,in order to prevent the erosion of citizens’ freedoms and rights,the power to decide that two different types of constituent facts have the same purpose for protection of legal interests should be enjoyed only by the legislator,that is to say,legal fiction in criminal law can’t exist without legislation.And the reasonableness of the legal fictions in judicial interpretations should not be recognized.However,even with unique structure and specific space of existence,the fiction is always confused with the attentions of the Penal Code.Although the two are indeed highly similar in appearance and structure,the former creates a new atypical type of wrongdoing that is equal to the corresponding basic type;The latter are completely concluded in the basic types of wrongdoings and only subtypes under the basic types,which provides a benchmark for accurately identifying the two.Although the legal fiction has a long history,its reputation is mixed,and someone even says that abolishing the legal fiction in criminal law is just on the way.Obviously,it is urgent to justify its name.Methodologically,the criminal law fiction is the result of legislators’ analogous reasoning guided by abstract principles of justice—the same wrongfulness should be treated equally.For essential justice,the legal fiction the is only applicable to specific occasions of legislation,while the basic provisions are still applicable in general and most occasions,which makes the composition of the basic crime not be abandoned and the connotation of the existing types of wrongdoings more macroscopic and inclusive.The reason why the two different types of constituent facts are evaluated equally in criminal law is because there is a kind of identity of criminal law concern between them,so the legal fiction does not break the essential principle of legality.In addition,the legal fiction can reduce the undue coercion of the freedom and rights of the criminal and make sure that the victims receive fair and just results;In terms of the economics of criminal law,the legal fiction can quickly cut through the chaos and save cumbersome expositions while maintaining legal justice,and promote judicial unification.As an atypical manifestation of the wrongdoing,when applying to judicial practice,the criteria for legal-fiction crimes’ establishment should be consistent with the basic crimes,without demanding conditions beyond legislation.Since the legal fiction in criminal law is incomplete,the legal-fiction provisions and the basic provisions should be quoted simultaneously to complete the conviction.Finally,conviction is a holistic thinking,while sentencing is an individual thinking.As an accurate science,criminal law should not only have insight into the similarity between legal-fiction crimes and basic crimes as a whole,but also pay attention to the different degree in the details of the constituent facts.In view of the fact that the offences and liability of most legalfiction crimes in the Penal Code are weaker than those of the basic crimes,it is suggestive that they share the same accusation but the penalty of legal-fiction crimes can be mitigated.Although the legal fictions reflect the soberness and wisdom of legislators in the face of new things and situations,both academics and practical circles still regard it as "weirdo" and vigorously hold back their application.It is true that special provisions can’t be used generally,but in some special circumstances,blind refusal to apply will indulge crime.The atypical types of wrongdoing described in the legal fiction are of equal status to the basic types,so within the domain of article 17 of the Penal Code,teenagers of relative criminal age are required to bear criminal responsibility for the corresponding legal-fiction crimes.Other offences that compatible with basic theft,fraud and forcible seizure in the Penal Code can develop into the crime of legal-fiction robbery according to article 269.Moreover,article 263 can not only be penalty reference of article 269,but also have an special application in article 269.