Readers, what do you think of "Chapter 5 of the Principles of Interpretation of the Specific Provisions of the Criminal Law: Avoiding Contradictions and Maintaining Coordination"? Welcome to leave a message or contribute to the discussion below. For the original manuscripts sent by this WeChat public platform, in addition to the remuneration for each manuscript, the Hunan Provincial Criminal Law Research Association will evaluate and reward different levels every year. What are you waiting for, come and submit!
Submission email: [email protected].
Principles of Interpretation of the Specific Provisions of the Criminal Law
Content overview
Reading insights
This book argues that avoiding contradictions and maintaining harmony are the minimum requirements for the interpretation of the criminal law system, and that this requirement should be implemented not only in the interpretation of the internal provisions of the criminal law, but also in the coordination between the criminal law and other departmental laws (especially the Constitution) through interpretation. Mr. Zhang Mingkai opposes the practice of scholars questioning legislation at every turn, and believes that as long as the legislative text and the protection of legal interests are sorted out and mastered, the provisions of the criminal law can be logically smooth and play their due role. The author deeply agrees with this viewpoint: the reason for the existence of criminal law interpretation is because criminal legislation should leave room for judicial interpretation and application, which is why some scholars believe that there are "loopholes" in legislation. In fact, some of the "loopholes" are precisely intentional by legislators. With the development of technology and the rapid development of criminal methods, it is impossible for the criminal law to be amended to meet the needs of criminal sanctions.
However, at the same time, the author is also aware of such a problem: as an advocate of substantive interpretation theory, Mr. Zhang Mingkai interprets the criminal law substantively by taking the protection of legal interests of crime as the basis of the interpretation method, and in this process, it is inevitable that the original text of the legislation (at least the text content of the original text) has made a different interpretation from semantics (or popular understanding). Is this substantive interpretive stance of "avoiding contradictions and maintaining coordination" contrary to the principle of legality? For example, in the interpretation of Article 237 of the Criminal Law, Mr. Zhang Mingkai believes that it is not appropriate to distinguish between "insult" and "indecency" when interpreting this article, which is obviously contrary to the general perception of the public. Under the premise that the Criminal Law clearly has the crime of insult, it can be seen that the means and legal interests infringed by insult and indecency should be different, and even if the legal interests infringed by the crimes of forcible indecency and insult are uniformly interpreted as sexual autonomy, sexual autonomy is not inseparable. It is worth exploring whether this interpretation is an extended interpretation or an analogous interpretation. If the purpose of the interpretation of criminal law is only to avoid contradictions and maintain coordination, then the interpreter is likely to come to a conclusion that is contrary to the original intent of the legislation in order to make the criminal law system claim to be a faction. In this case, we return to the basic question: should the interpretation of criminal law adopt the theory of formal interpretation or the theory of substantive interpretation? In fact, in the author's opinion, these problems that can only be solved by the method of "substantive interpretation" can also be solved by the method of formal interpretation. When interpreting crimes, interpreters must follow the principle of legality as the minimum, otherwise it will be difficult to achieve the predictability of the criminal law, which is contrary to the legislative purpose, and only on this basis can we further discuss how to avoid contradictions and maintain coordination in the criminal law through formal interpretation.
Producer: Zhang Yongjiang
Author: Yu Lu, a 2023 master's student in criminal law at Xiangtan University
Editor: Gong Yi
Editor-in-charge: Cao Enni
Review: Wang Kui
Hunan Provincial Study Group on the Rule of Criminal Law
WeChat: Hunan Provincial Criminal Rule of Law Research Association
Weibo: @湖南省刑事法治研究会
Today's headlines: Hunan Provincial Criminal Rule of Law Research Association