On The Judicial Application Of Course Interpretation

The purpose of law is to regulate the behavior of social subjects.However,the written criminal law can not closely follow the needs of social development due to its own limitations such as lag,abstraction,etc.,which is often inadequate for new criminal acts.Of course,as a kind of criminal law interpretation,interpretation is one of the main theoretical tools to make up for the shortcomings of written criminal law.For example,there is doubt in the criminal law that the perpetrator wants to produce ephedrine subjectively and produces the intermediate methacetone objectively for reasons other than will.To solve this problem,other interpretations in the criminal law can not provide a satisfactory solution,but of course,the interpretation provides the possibility to solve this problem.However,the current research on the interpretation of course is not complete.Scholars have great differences on its application premise,application basis and other basic issues,which makes the role of the interpretation of course in judicial practice not fully play.Especially in the case of "not express" provisions in criminal law,of course,it is of theoretical and practical significance to explain whether and how to play its role in judicial practice.Therefore,the author will start from the specific drug cases in reality,relying on case analysis,literature research,comparative research and other research methods to discuss the qualitative of this kind of behavior.Guided by problems,this paper explores the essence of qualitative disputes and the theoretical basis for solving such problems.On this basis,we will further explore the existence of space for the crime of illegal production of drugs and the theoretical and practical obstacles to be solved.According to this idea,the article is divided into four chapters.The specific contents are as follows:Chapter 1: the problem.Taking the "chicken farm drug making case" in Jiange County,Sichuan Province in 2016 as an example,how to define the intermediate "methcathinone(drug)" produced in the process of illegal production of ephedrine(drug making articles)in practice is the starting point.It points out that the focus of controversy in the case lies in the distinction between the crime of illegally producing drugs and the crime of making drugs.Its essence is that when it is impossible to judge that the actor has intention to manufacture drugs,does not admit that the actor has general intention to manufacture drugs,and the existing "judicial interpretation" does not include "methcathinone" in the drug-making articles,can the judge apply the intermediate "drugs" to the legal provisions of "drug-making articles",that is,can the "former" be interpreted as "the latter" ?Because other interpretations in the criminal law can not provide a satisfactory solution to this problem,and of course,the interpretation provides the possibility to solve this problem.Therefore,this paper takes the application of natural interpretation as the core to demonstrate the theoretical and practical feasibility of solving the above problems.Taking this case as an example,the author thinks that there are three unavoidable problems in using the interpretation of course to solve such cases,which provides the direction for the following discussion.Chapter 2: general problems of course.This part is mainly about the theory of course interpretation in judicial practice.First of all,starting from the explanation of the divergence of the concept of interpretation of course in criminal law,it is proposed that the reason why scholars disagree on the concept of interpretation of course is that they have not reached an agreement on the applicable premise and basis,so it is necessary to analyze the applicable premise and basis from the internal mechanism.Secondly,on the basis of the analysis and argumentation of various theories,it is believed that the applicable premise of the interpretation of course is that there is no clear provision in the law,and the ambiguity here refers to not only the meaning differences of words but also the logical differences.Of course,the application of interpretation is based on the principle of course and substantive logic of course,and its specific judgment is based on the common attributes and normative purposes of things.On this basis,the limitation of the interpretation of course is demonstrated.It is considered that the maximum scope of the interpretation of course is not beyond the maximum scope of semantics,and the maximum judgment of its semantics is based on the typological characteristics of abstract criminal law provisions,combined with the purpose of Chinese dictionary and oral meaning norms and the prediction possibility of ordinary people.At last,it analyzes the purpose interpretation,expansion interpretation and analogy interpretation which are easy to be confused with the natural interpretation in the application of criminal law.It holds that the biggest difference between the interpretation of course and the interpretation of purpose is that the interpretation of course is an independent interpretation method;the biggest difference between the interpretation of course and the interpretation of analogy is that the reasoning method is different;and the relationship between the interpretation of course and the interpretation of extension is that of inclusion and inclusion.Chapter 3: the application of the judge's interpretation of course.On the basis of the explanation of the basic problems of natural interpretation,the author further proves that the conclusion of its interpretation should be applied to the problems to be solved and paid attention to in judicial practice.First of all,using the classification method of general criminal law interpretation method for reference,of course,interpretation belongs to academic interpretation.Therefore,in order to apply this interpretation conclusion to judicial practice,the first problem to be solved is whether the judge has the right of legal interpretation.Through the analysis of the dispute on the theory of judge's right of interpretation,the author thinks that judge's right of interpretation has profound theoretical and practical basis.Secondly,on the premise of recognizing the judge's right of legal interpretation,the author thinks that the judge's interpretation of law is not unrestricted,but follows the basic principles and methods of "rational judgment".Specifically speaking,the judge must follow the text of criminal law as the basic premise,and follow the key points of interpretation as the important content.Thirdly,it discusses the specific operation steps of the judge's using of course interpretation.In order to apply the conclusion of ex officio interpretation to judicial practice,the judge must strictly follow the operation steps of ex officio interpretation,and correspond the facts to be determined with the elements of law one by one.At last,it emphasizes the effect of the judge's interpretation of course.The conclusion that the judge uses the interpretation of course only has the effect of a case.Chapter 4: the settlement of the conflict between the judge's interpretation of course and the judicial interpretation.Based on chapter two and chapter three,this paper introduces the typical cases in judicial practice where the conclusion of the judge's interpretation of course is inconsistent with the provisions of "judicial interpretation",and explains whether there is a conflict between the two.First of all,the "broad judicial interpretation" is divided into "narrow judicial interpretation" and "judicial interpretative documents".On this basis,the effectiveness of the two are distinguished.It is considered that "judicial interpretative documents" and "narrow judicial interpretation" are different,and they are not legally entitled to interpretation.Secondly,based on the effectiveness of the two,this paper discusses the relationship between them and the judge's interpretation of course.It is concluded that the relationship between the judge's interpretation and the "narrow judicial interpretation" is mandatory compliance,while the relationship between the judge's interpretation and the "judicial interpretative documents" is non mandatory guidance.Finally,on the premise of confirming the relationship between the judge's interpretation of course and the judicial interpretation,the author thinks that the conflict between the judge's interpretation of course and the judicial interpretation documents is false,and the conflict between the judge's interpretation of course and the judicial interpretation in a narrow sense will also appear logical coordination from the perspective of the interpretation of course.This is the end of the paper.