Research On Standardization Of Judicial Interpretation Of Criminal Law

In the judicial practice of our country,the judicial interpretation of criminal law has been playing an important role,which directly affects the results of criminal trials in the abstract normative form.However,there are many defects and problems in the existing judicial interpretation of criminal law,especially the expansion of the semantic of criminal law in some judicial interpretation of criminal law is regarded by many scholars as a breakthrough of the principle of legality of crime and punishment.Due to historical reasons and the particularity of China’s judicial system,the existence of judicial interpretation of criminal law has its necessity and rationality,and it can not be completely denied because of defects.In this case,standardization is the way to develop the judicial interpretation of criminal law.The standardization of judicial interpretation of criminal law means that under the guidance of basic theories,the formulation and application of judicial interpretation of criminal law follow certain standards.The realization of standardization can maximize the basic effect of the judicial interpretation of criminal law.This paper is divided into six chapters to study the standardization of judicial interpretation of criminal law.The first chapter is the research foundation of the standardization of judicial interpretation of criminal law.The research on the standardization of the judicial interpretation of criminal law needs to be based on the accurate understanding of the judicial interpretation of criminal law.The concept of judicial interpretation of criminal law has the theory of highest judicial organ interpretation,the theory of judicial organ interpretation,the theory of judge interpretation,the theory of court interpretation and the theory of extensive interpretation.Among these theories,the theory of highest judicial organ interpretation is preferable for the following reasons: first,the theory of highest judicial organ interpretation has legal basis.The theory of highest judicial organ interpretation is recognized in the Resolution on Strengthening the Interpretation of Laws issued by the Standing Committee of the National People’s Congress in 1981 and the Legislation Law of 2015.Second,the theory of highest judicial organ interpretation is in line with historical tradition.In the early process of the construction of the rule of law in China,due to the weak professional ability of judicial personnel,it was necessary for the highest judicial organ to give necessary guidance to the application of criminal law.This system has been carried on till now,making the theory of highest judicial organ interpretation more in line with the reality.Third,the theory of highest judicial organ interpretation is more suitable for China’s judicial system.In China,the highest judicial organ has the power of supervision and leadership over other judicial organs,and the formulation of judicial interpretation of criminal law by the highest judicial organ can achieve effective judicial guidance.At the same time,the object of the judicial interpretation of criminal law should be the criminal law itself,because even if the trial process of criminal cases involves the interpretation of the facts,the purpose of the judicial interpretation of criminal law is to guide the application of criminal law,and the interpretation only for the facts cannot become the object of the judicial interpretation of criminal law.Accordingly,it is reasonable to define the concept of judicial interpretation of criminal law as the interpretation of the authorized highest judicial organ.Based on the limitation of written law,the application of criminal law inevitably involves the interpretation of criminal law,and the interpretation made by the highest judicial organ can achieve judicial unity,and the existence of judicial interpretation of criminal law has legitimacy.Moreover,from the perspective of the actual situation of judicial practice in China,the judicial interpretation of criminal law is actually applied and complied with by judicial personnel and other members of society,which is a practical and effective judicial system.Therefore,the existence of judicial interpretation of criminal law is reasonable and necessary.The second chapter is the basic theory of the standardization of judicial interpretation of criminal law.The standardization of judicial interpretation of criminal law needs to be guided by basic theories.First,the basic orientation of the judicial interpretation of criminal law should be clarified.The judicial interpretation of criminal law is a kind of compulsory force to realize judicial unity,and it also shows the specific resource ability and relationship structure,so it is more appropriate to understand the judicial interpretation of criminal law as power.Because the judicial interpretation of criminal law is presented in the abstract form,some views regard the judicial interpretation of criminal law as judicial law in theory,and some views regard the judicial interpretation of criminal law as authorized legislation,supplementary legislation or quasi legislation.However,these viewpoints do not make a clear distinction between the judgment of the nature of judicial interpretation of criminal law and the description of the performance characteristics of the existing judicial interpretation of criminal law.Even if the judicial interpretation of criminal law is presented in the abstract form,it can not be divorced from the nature of judicial power.The essence of judicial power is judgment,and the judicial interpretation of criminal law does not deviate from the nature of judgment,but belongs to a kind of prejudgment made in the abstract form,so the judicial interpretation of criminal law should be understood as judicial power.China’s criminal law makers is intended to delegate part of legislative power to judicial power,the typical example is the The Amendment Ⅸ to the Criminal Law modified the standard criterions for embezzlement and bribery from the concrete model to elastic,giving the power of making specific standard criterions for embezzlement and bribery to the judicial interpretation of criminal law,making the judicial interpretation of criminal law looks like "legislation".However,the appearance of this phenomenon should not change the judicial power attribute of the judicial interpretation of criminal law.Second,we should clarify the basic position of judicial interpretation of criminal law.There is a dispute between subjective interpretation and objective interpretation in the theory of criminal law interpretation,and there is a compromise in the debate.As a special interpretation of criminal law,the judicial interpretation of criminal law should clarify its basic position according to the current situation of criminal law legislation and judicature.The original intention of legislation exists objectively.If the original intention of legislation can be defined,the judicial interpretation of criminal law should be based on subjective interpretation.However,under the circumstance of the development and change of social environment,the original intention of legislation cannot solve all judicial problems.For the new situation that the legislator cannot foresee,it belongs to the absence of the original intention of legislation rather than the negation of the original intention of legislation.At this time,we should choose the position of objective interpretation to explain,such as explaining the new crime problems brought by the development of science and technology.Thirdly,the basic limits of judicial interpretation of criminal law should be clarified.As for the limit of the interpretation of criminal law,there are two viewpoints of formal interpretation and substantive interpretation in the theory of criminal law in our country.The essence of the debate is how to make value choice when different functions of criminal law conflict,which has gradually deviated from the theme of the dispute over the limit.The basic limit of the judicial interpretation of criminal law should be the "bottom line" of the judicial interpretation of criminal law,which is one but not multiple,otherwise it will deviate from the due meaning of the limit.In this regard,the possible semantic scope of criminal law provisions is the most consistent with the meaning of the basic limit of judicial interpretation of criminal law.Fourthly,the basic method of judicial interpretation of criminal law should be clarified.The judicial interpretation of criminal law should take the method of liberal interpretation as the priority.In the case of multiple different interpretation results of liberal interpretation,the most reasonable interpretation results should be determined by the theoretical interpretation methods such as objective interpretation,system interpretation and historical interpretation,especially the application of objective interpretation methods.Finally,the interpretation results need to be examined through constitutional interpretation to strengthen the persuasion of the interpretation results.Fifthly,the basic supervision of the judicial interpretation of criminal law should be clarified.The basic supervision of the judicial interpretation of criminal law must meet the requirements of comprehensiveness,specificity and compulsion.The existing judicial interpretation of criminal law in advance,in the event and after the supervision has defects need to be improved in time.The third chapter is the criterion of the standardization of judicial interpretation of criminal law.The judicial interpretation of criminal law needs to meet the standards of legality,rationality,clarity and necessity.First of all,the judicial interpretation of criminal law needs to meet the standard of legality.The standard of legality is the direct requirement of the principle of legality for the judicial interpretation of criminal law.The judgment of legality standard is directly related to the basic limit of the judicial interpretation of criminal law.Because language is the direct medium of criminal law,using the possible semantics as the standard of legality can best show the spirit of human rights protection of the principle of legality.Secondly,the judicial interpretation of criminal law needs to meet the standard of rationality.Meeting the standard of legality does not mean that the interpretation results are unique and correct.The standard of rationality can make the judicial interpretation of criminal law more accurate and scientific.The standard of rationality can be divided into the standard of formal rationality and the standard of substantial rationality.The standard of formal rationality is different from the standard of legality.The standard of legality requires that the judicial interpretation of criminal law should not exceed the possible semantic scope of the provisions of criminal law,while the standard of formal rationality requires that the judicial interpretation of criminal law should follow the same thinking logic as the provisions of criminal law,and the system of judicial interpretation of criminal law should maintain the coordination of form.The standard of substantial rationality requires that the judicial interpretation of criminal law conform to the basic concept of criminal law and social recognition.The function of substantive rationality standard is to avoid the possible defects of judging the rationality of criminal judicial interpretation only by the standard of formal rationality.The standard of formal rationality and the standard of substantial rationality interact to form a complete rationality standard of judicial interpretation of criminal law.Thirdly,the judicial interpretation of criminal law needs to meet the standard of clarity.The standard of clarity requires that the meaning of the judicial interpretation of criminal law be clear,clear and exact.The judgment of the standard of clarity in the judicial interpretation of criminal law can be divided into two aspects: form and substance.In terms of form,the judicial interpretation of criminal law should not use too vague and abstract language;In essence,the clarity of the judicial interpretation of criminal law must be able to avoid ambiguity among judicial personnel.Finally,the judicial interpretation of criminal law needs to meet the standard of necessity.The standard of necessity requires that the judicial interpretation of criminal law should be more efficient and only explains the application of criminal law that is necessary to be explained.The necessity standard can improve the existing judicial interpretation system of criminal law is too large and miscellaneous situation.Two types of judicial interpretations of criminal law which emphasize,repeat and formulate the existing contents of criminal law provisions only to attract the attention of judicial personnel to the content of criminal law provisions do not meet the requirements of the standard of necessity.The fourth chapter is about the types of anomie in criminal judicial interpretation.According to the standard of legality,rationality,clarity and necessity of judicial interpretation of criminal law,the phenomenon of anomies in the existing judicial interpretation of criminal law can be sorted out.First of all,the criminal law judicial interpretation that violates the standard of legality can be divided into the judicial interpretation of criminal law that violates the general provisions of the criminal law and the judicial interpretation of criminal law that violates the specific provisions of the criminal law.The judicial interpretation of criminal law that violates the general provisions of the criminal law includes the judicial interpretation of criminal law that violates the principle of application of the old law with the exception of a less punishment in the new law,the judicial interpretation of criminal law that violates the provisions of joint crime,the judicial interpretation of criminal law that violates the provision of the meaning of "violation of state regulations",the judicial interpretation of criminal law that violates the provision of the meaning of "national staff member" and the judicial interpretation of criminal law that violates the provision of attempted crime.And the judicial interpretation of criminal law that violates the specific provisions of the criminal law includes the judicial interpretation of criminal law that violates the provision of stir-up-trouble crime,the judicial interpretation of criminal law that violates the provision of trafficking in women and children crime,the judicial interpretation of criminal law that violates the provision of hide crime,the judicial interpretation of criminal law that violates the provision of producing and selling fake and inferior commodities,the judicial interpretation of criminal law that violates the provision of selling counterfeit negotiable certificates and the judicial interpretation of criminal law that violates the provision of libel.Secondly,the judicial interpretation of criminal law that violates the standard of rationality can be divided into the judicial interpretation of criminal law that violates the standard of formal rationality and the judicial interpretation of criminal law that violates the standard of substantive rationality.The judicial interpretation of criminal law that violates the standard of formal rationality includes the judicial interpretation of criminal law that violates the basic principle of overlap provision application,the judicial interpretation of criminal law that violates criminal law thinking logic,the judicial interpretation of criminal law that violates criminal law system and the judicial interpretation of criminal law that violates the basic nature of specific crime stipulated by criminal law.The judicial interpretation of criminal law that violates the standard of substantive rationality includes the judicial interpretation of criminal law that violates the principle of proportionating punishment to crimes,the judicial interpretation of criminal law that violates the modesty of the criminal law,the judicial interpretation of criminal law that violates the social identity and the judicial interpretation of criminal law that sets too mechanical conviction and sentencing standard.Thirdly,the judicial interpretation of criminal law that violates the standard of clarity can be divided into the judicial interpretation of criminal law that violates the clarity standard in form and the judicial interpretation of criminal law that violates the clarity standard in substance.The judicial interpretation of criminal law that violates the clarity standard in form includes the judicial interpretation of criminal law that uses "double save" terms,the judicial interpretation of criminal law that uses save terms inappropriately,the judicial interpretation of criminal law that uses "social influence" as criterion of criminal proportion and the judicial interpretation of criminal law that uses probability words.The judicial interpretation of criminal law that violates the clarity standard in substance includes the judicial interpretation of criminal law that define the behaviors unclearly,the judicial interpretation of criminal law that has contradiction,the judicial interpretation of criminal law that uses the language extending crime circle improperly in the judicial practice and the judicial interpretation of criminal law that uses specific terms.Finally,the judicial interpretation of criminal law that violates the standard of necessity can be divided into repeated judicial interpretation of criminal law and suggestive judicial interpretation of criminal law.The repeated judicial interpretation of criminal law includes the judicial interpretation of criminal law that repeats the provision of joint crime,the judicial interpretation of criminal law that repeats the subjective aspect of behavior,the judicial interpretation of criminal law that repeats the objective aspect of behavior,the judicial interpretation of criminal law that repeats the provision of hide crime and the judicial interpretation of criminal law that repeats the the provisions of property punishment.The suggestive judicial interpretation of criminal law includes the judicial interpretation of criminal law that suggests the provision of joint crime,the judicial interpretation of criminal law that suggests the provision of crime attempt,the judicial interpretation of criminal law that suggests the reducing time in custody before probation,the judicial interpretation of criminal law that suggests specific subject requirements,the judicial interpretation of criminal law that suggests clarification of this sin and that sin,the judicial interpretation of criminal law that suggests crime choosing for juvenile delinquency,the judicial interpretation of criminal law that suggests making punishment for imaginative joiner of offense,the judicial interpretation of criminal law that suggests making punishment for several crimes and the judicial interpretation of criminal law that suggests the establishment of one-sided accomplice.The fifth chapter is the standardization of the enactment of judicial interpretation of criminal law.In terms of enactment,the standardization of judicial interpretation of criminal law can be discussed from three aspects: enactment system,enactment standardization of judicial interpretation of criminal law involving conviction and enactment standardization of judicial interpretation of criminal law involving sentencing.The enactment system of judicial interpretation of criminal law includes the stages of project approval,drafting and deliberation.The problems of the current system of enactment system include: lack of the requirement of examining the necessity of approval of judicial interpretation of criminal law,too much focus on the internal discussion and deliberation in the highest judicial organ,lack of system,etc.,which should be improved.The conviction in our country includes two parts: qualitative and quantitative,and the corresponding identification objects are the nature and proportion of crime.The nature and proportion of crime can be separated,so the judicial interpretation of criminal law can explain the proportion of crime separately.The separation of nature and proportion of crime can help to distinguish between illegal and criminal,and can effectively explain the nature of the distinction between one crime and another.The crime proportion can be divided into basic crime proportion and aggravated crime proportion,the nature and basic crime proportion constitute the basic crime composition,and the nature and aggravated crime proportion constitute the aggravated crime composition.First,the judicial interpretation of criminal law involving crime nature should be strictly limited to explain space,because the language in the criminal law about crime nature is relatively clear,the corresponding explanation space itself is not big,and the judicial interpretation of criminal law involving crime nature once adopted expanding interpretation will directly reduce the threshold into sin.At the same time,not all identification of crime nature needs judicial interpretation of criminal law.The judicial interpretation of criminal law should only be enacted when controversial in understanding,new technology,new means or loopholes in the provisions of the criminal law appear.Second,the judicial interpretation of criminal law involving crime proportion can select a single mode or a mixed mode according to the different types of crime proportion.The judicial interpretation of criminal law involving crime proportion usually includes the judicial interpretation of criminal law involving the determination of crime amount,the judicial interpretation of criminal law involving the determination of crime result and the judicial interpretation of criminal law involving the determination crime plot.Among them,the basic goal of the judicial interpretation of criminal law involving the determination of crime amount is to realize the determination of amount and correlation of amount.The amount determination needs to consider the level of social and economic development,the difference of social harm between different crimes and the proportion relationship between different levels of the same crime.Amount correlation requires accurate understanding of different types of amounts and sufficient empirical analysis of different types of amounts based on judicial practice.It is necessary to make clear whether the result is the actual harm result,the concrete danger or the abstract danger,and to make specific provisions for different types of results when enacting the judicial interpretation of criminal law involving the determination of crime result.The judicial interpretation of criminal law involving the determination crime plot usually uses mixed mode,but can violate the basic nature of the plot,the separate elements of constitutive requirements,any criminal or administrative punishment,criminal record elements such as capital source and direction,after the event behavior should not be incorporated into the scope of the plot,the victim or his near relatives of suicide and self-harm situation should not be unconditionally as a part of the plot.Thirdly,as for the judicial interpretation of the criminal law involving the determination of sentencing,the principle and method of sentencing should be clearly defined,and different sentencing circumstances should be distinguished.On the one hand,the enaction of judicial interpretation of the criminal law involving sentencing should be guided by the purpose of penalty,and the discretion of the judge should be kept appropriately.On the other hand,the enaction of judicial interpretation of the criminal law involving sentencing should define the scope of sentencing plot,accurately identify the function and effect of sentencing plot,and clarify the applicable rules of different sentencing plot.As for the application of statutory sentencing plot,the judicial interpretation of criminal law should be enacted according to the fundamental purpose of statutory sentencing plot,and the contents applicable to the same type of statutory sentencing plot should be concentrated and combined to avoid application conflicts.As for the application of discretionary sentencing plot,the judicial interpretation of criminal law should pay attention to the balance between giving the judge the discretion and making the application of discretionary sentencing plot,pay attention to the standardization of the application of discretionary sentencing plot,and pay attention to the differentiation of different types of discretionary sentencing plot.The fifth chapter is the standardization of the enactment of judicial interpretation of criminal law.In terms of application,the standardization of judicial interpretation of criminal law can be discussed from the aspects of application characteristics,application effectiveness,conflict application and "reinterpretation" of judicial interpretation of criminal law.First of all,the characteristics of the application of judicial interpretation of criminal law should be clarified.In theory,there are two distinct viewpoints on the discussion of the characteristics of judicial interpretation of criminal law.The first viewpoint is the subordinate view,which holds that the judicial interpretation of criminal law is subordinate to the provisions of criminal law.The second view is that of relative independence view.This view believes that although the judicial interpretation of the criminal law is the interpretation of the provisions of the criminal law,it is relatively independent from the provisions of the criminal law.As a matter of fact,the nature of the dispute between subordinate view and relative independence view is the dispute between idealism and realism,logism and rationalism.Subordinate theory is a kind of idealism theory,its establishment needs ideal criminal law provisions and ideal judicial interpretation of criminal law;The relative independence theory focuses on the current situation of the provisions of criminal law and the judicial interpretation of criminal law,which is a realistic theory.At the same time,the subordinate theory firmly grasps the core that the judicial interpretation of criminal law is the interpretation of the provisions of criminal law,holds that the judicial interpretation of criminal law cannot be relatively independent,is the product of strict logical reasoning,belongs to the logicalism theory;The relative independence theory guarantees the effectiveness of the judicial interpretation of criminal law by establishing the relatively independent and normative status of the judicial interpretation of criminal law,and at the same time embodies the basic spirit that the principle of a statutory punishment for a crime is beneficial to the defendant.It analyzes the characteristics of the judicial interpretation of criminal law from rationalism.Accordingly,it is necessary to find a dwelling place between idealism and realism,between logicism and rationalism.The author believes that this problem can be solved by acknowledging the two sides of the judicial interpretation of criminal law,that is,although the judicial interpretation of criminal law should be subordinate to the criminal law in the enaction stage,it should be relatively independent as a special criminal law norm in the application stage.Admitting the fact that the application of judicial interpretation of criminal law is relatively independent can alleviate the characteristics contradiction of judicial interpretation and achieve the purpose of judicial interpretation of criminal law to the greatest extent within the framework of the principle of legality of crime and punishment.Secondly,because of the relative independence of the application of the judicial interpretation of criminal law,the judicial interpretation of criminal law should have its own time effect.At the same time,the spatial effectiveness of judicial interpretation of criminal law should not be different with different regions and systems,otherwise it violates the principle of equality and can avoid the difficulties in the application of judicial interpretation of criminal law caused by trans-regional and systematic crimes.Thirdly,for the conflicts between the judicial interpretation of the criminal law and the provisions of the criminal law,judicial personnel should give priority to the application of the judicial interpretation of the criminal law in the absence of special circumstances.This is because the judgment of the conflicts between the judicial interpretation of criminal law and the provisions of criminal law itself is very difficult,in the absence of authority to identify the case,the effect of the judicial interpretation of criminal law should not be easily denied.For the conflicts between the judicial interpretations of criminal law,if their subjects are the same,the latest judicial interpretation of criminal law should be applied first,because the latest judicial interpretation of criminal law represents the latest opinion of the highest judicial organ;If their subjects are different,the judicial interpretation of criminal law enacted by the highest court should be applied first,because the exercise of judicial power by the court is final.Finally,as an abstract norm,the application of judicial interpretation of criminal law may need to be "reinterpretation".In the process of "reinterpretation" of the judicial interpretation of criminal law,the save clauses in the judicial interpretation of criminal law should not be applied too much.At the same time,the "reinterpretation" of the judicial interpretation of criminal law is limited by the double semantic scope of the provisions of criminal law and the judicial interpretation of criminal law.Under the condition that there are many possible "reinterpretation" results in the judicial interpretation of criminal law,we should finally get the reasonable "reinterpretation" results according to the interpretation methods such as the purpose interpretation.In general,the standardization of judicial interpretation of criminal law is a systematic project.In addition to the guidance of basic theories,it also needs to "adapt the medicine to the case" in the process of formulation and application,and adopt different standardization strategies for different problems,making the judicial interpretation of criminal law truly perform the basic function as the guidance in application of criminal law.