Research Into Formation Of Rationality Of Criminal Law

In the activities involving criminal law, unjustified determination and measurement of penalty in criminal cases and criminal judicial interpretations in violation of the legislative intention labeled as"pathological phenomena"by some scholars appear from time to time. For these, sometimes people do not discover, or ignore, or have no due way to resist. All these similar characterized phenomena are closely related to the rationality of criminal law. In other words, these phenomena perplexing us are contrary to or in violation of the rationality of criminal law. As a result, our study on the rationality of criminal law shows great essentiality in preventing and lessening the occurrence and insurgence of these pathological phenomena and improving the mind and body of criminal law. In this article, based on the proposition that criminal law is a law of reason, and from the formation of the rationality of criminal law, the author attempts to find out the formation and mechanism of rationality of criminal law and then present us a new perspective and method for criminal legislation, criminal justice and study of criminal law to analyze pathological and non-rational phenomena of criminal law, and the author puts forward some relevant proposals on maintainance of the character and overcoming the violation of rationality of criminal law.This article consists of Introduction, Body (Chapters I, II, III, IV, V) and Conclusion, with totally more than one hundred sixty thousand words.Introduction covers the reasons why the subject on the formation of rationality of criminal law is chosen and the study methods that are employed for writing this article. The selection of this subject is resulted from the three aspects of the perception of the practice, the enlightenment of the history and exploration of the theories. It is not hard to find out that there often appear cases inconsistent with rationality of criminal law in our judicial practice and phenomena inconsistent with the rationality of interpretation methods of criminal law in criminal judicial interpretation law and shocking facts in contravention of rationality of criminal law in history are distinctly clear to us. Therefore, a proposition on the study of the criminal law by a philosophical consideration makes the subject of this article prerequisite and feasible, simultaneously, the value of the study in this article are defined. The main study methods employed herein are comprehensive method, comparative method, historical method and logical method.Chapter I It provides theoretical basis and frame of analysis for this whole article by using the proposition as point of penetration that the criminal law is rational law and conducting acodemic distinction of the relevant concepts of rationality, legal rationality and rationality of criminal law. After a brief introduction of the historical change of the schools of theories on the rationality, it is concluded that rationality is formed and developed in the process that people recognize and master the substance of the world and the law of the matter and based on such recognition and mastery of the world to guide the practice and to surpass the summary of the theories and practice. Legal rationality and rationality of criminal law are detailed manifestation of rationality of rationality in the levels of law and criminal law, and therefore, they are closely relation to rationality but also have their own characteristics. The rationality is the basis; the legal rationality and rationality of criminal law are derived from the same origin and has the same spirit. In terms of the theory of legal rationality, the different understanding and interpretations made by the law school of natural law, positivism, legal sociology and pragmatism are reviewed in this article, it is concluded that the legal rationality are at least characteristic of four aspects of connotations and features as follows: the substance of legal rationality is the law of consistence with the law of the matter and its development; the specific content of value is the pursuit of target by the legal rationality; the internal legal form and formation is the important content of the legal rationality; scientific legal methods are the means of realization of legal rationality.In terms of rationality of criminal law, after reviewing the rationality of criminal law of the enlightenment period, the classical school of criminology, and the school of criminological anthropology, it is concluded that the rationality of criminal law should cover the contents as follows: the basic concepts of criminal law and the basic viewpoints are the basis for the rationality of criminal law; the popular connotation of the values of criminal law with the then social fashions are the target in pursuit by the rationality of criminal law, the law of the internal form and structure of criminal law are the main manifestation of rationality of criminal law; methods of criminal law are the main path to realization of rationality of criminal law.Chapter II It discusses the rationality in the basic notion of criminal law which is the basic layer of structuring the rationality of criminal law. In this article, first from the perspective of the formation and development of the basic concepts of criminal law to outline the basic conceptual rationality of criminal law, it is concluded that, in the historical evolution of the notions of justification of criminal law, enforcement of criminal law and mechanism of criminal law, the rationality of mechanism of criminal law and scope rationality and form rationality mainly shape the basic notional rationality of criminal law and it grows and evolve. Furthermore, the author discusses the trend of the rationality of criminal law in our country, and puts forward more suggestions on more rationality oriented mechanism of criminal law, more rationally defined scope of criminal law and more popularly accepted form of criminal law.Chapter III It discusses the rationality of the basic principles of criminal law which is not only the priciple and embodiment of rationality in basic notion of criminal law, but also the basis of rationality of constitution of crime in criminal law and applicable method in crimimal law, positioned as a connectiong link in the formation of rationality of criminal law. Starting from the two basic principles of"Nullum Crimen Sine Lege, Wulla Poena Sine Lege"and"Balance between Crime and Punishment"and by deeply analyzing the connotation and implication of rationality of criminal law in these two principles, it is concluded that the rationality in the two principles of"Nullum Crimen Sine Lege, Wulla Poena Sine Lege"and "Balance between Crime and Punishment"are composed by their unique rationality of value, system and practice. The number one priority of human rights protection is employed in the rationality of vale of the principle of"Nullum Crimen Sine Lege, Wulla Poena Sine Lege"and at the same time and the pursuit of the value of social protection and its systematic rationality is also employed in the promotion of the system of statutory law and the request for the definition of the regulatory implications and the request for the forecasting the criminal results and the prohibition of reason by analogy and so on. And the practical rationality includes the rational treatment of free adjudication and rational interpretation of criminal clauses and rational reason of criminal law. The rationality of the value of the balance between crime and punishment shows the target of value in pursuit of just prevention of crime and its system rationality shows in the system design of the rational system of crime and punishment. Its practical rationality includes to rationally review the criminal acts, to measure the criminal circumstances and definition and declaration of crime and penalty.Chapter IV This chapter coveres the rationality of constitution of crime in criminal law which is the exemplification and expression of rationality in basic notion and priciple of criminal law in the inner form and structure of criminal law. In this article, the crime constitution rationality is analyzed through the two main aspects of system and function and it is concluded that the systematic rationality of crime constitution has clear basic concepts in contents and mutual pushing force between concepts. The functional rationality of crime constitution is to rationally direct the practice of criminal law and to expose the value of criminal law. Specifically speaking, by directing the criminal legislation and criminal judicature, the rationality of the mechanism of crime constitution shows the value of human rights protection and definition of crime commitment. After the exposition of the basic formation of the rationality of crime constitution, the demerit of the rationality of crime constitution in our country is analyzed and the author puts forward some constructive suggestions on the rationality of crime constitution in our country in the aspect of the systematic rationality and the functional rationality. Chapter 5 This chapter covered the nationality of applicable method of criminal law which is the last aspect in the formation of rationality of criminal law and the further extension and expansion of rationality of criminal law and the residence of practical spirit of rationality of criminal law. The application of criminal law is basically from the process of the three premises, structuring the rationality of criminal law from the rationality of the method of interpretation of criminal law and the rationality of the formation of criminal cases and the reasoning of criminal law. In this article the core of the rationality of the interpretation method of criminal law is subject to the principle of strict interpretation and the precondition of strict interpretation is the correct interpretation of the principle of the"Nullum Crimen Sine Lege, Wulla Poena Sine Lege"and the key is to attack romanticism and dogmatism and rationally treat expansion and reason by analogy and the possible interpretation of connotations in the versions of criminal law. At the same time, the logical rationality must be strictly observed and the ambiguous clauses must be interpreted rationally and the method of interpretation must be correctly chosen. The facts of a case form rationality and the fact of a case is balanced on the review of rationality and integration of rationality. That is to say, the review must be in all aspect and true and correct and the review of the facts of a case must not be repeated; in the formation of the fact of a case, the constitution elements and the facts of a case should be logically integrated; at the time of balance of the doubt for the fact, the principle of favorable to the defendant must be insisted and the doubt upon the law, this principle must be applied. In this article it is concluded that the logic reason as represented by the three premises is the base on the rationality of the reasoning method of criminal law and its demerits are analyzed and the connotation of the equivalent method on the basis of reasoning are discussed in this article.After the aforesaid expounds a clear outline and frame on the rationality of criminal law in the article, the conclusion makes a brief summary of the whole article. It is concluded that from the rationality of criminal law we can obtain a new perspective and method of reviewing the criminal law and take the currently hot pending"Xu Ting"case as example, to analyze the case with the method of the formation of the rationality of criminal law and echo the proposition in the above and call upon all the criminal law men to be men of rationality.This article is analyzed and formed the rationality of criminal law through the four aspects as follows: the basic concepts of criminal law, basic principles, crime constitution and method of criminal law. These four aspects have its own internal formation and mechanism and uniformly and organically make up the rationality of criminal law. The basic notional rationality of criminal law, as the first layer, is based as the most basic and elementary footing of the formation of rationality of criminal law, from macroscopically to microscopically, and from notionally and methodologically. Under the aforesaid order they are the rationality of the basic principle of criminal law, the rationality of crime constitution of criminal law, the rationality of reasoning method and they employ the basic notion of the formation of the rationality of criminal law and the frame and character of the integrate application method and the integration of the theory and the practice. It is these layers and the formation of their internal rationality that brace up the framework and outline of the rationality of criminal law and nurse the spirit of the rationality of criminal law and harbor the power of life of the rationality of criminal law.It is necessary to point out that, in the author's point of view, the rationality of criminal law is not only the subject to be explained and analyzed, but also a standard and method to guide the practice of criminal law, namely it is"the weapon to be criticized"as well as"the weapon to criticize".