| The interpretation method of criminal law is the feasible path and argumentation reason adopted by the interpreter to explain and reason the text of criminal law,and it is also the thinking norm that limits the arbitrariness of the interpreter.Since the mid-1980 s,the interpretation method of criminal law has been paid special attention and favored by academic circles.After nearly 40 years’ development,the theoretical research on the interpretation method of criminal law has achieved fruitful results.In judicial adjudication,it has become the norm for judges to use criminal law interpretation methods to demonstrate and reason.However,judges’ application of criminal law interpretation methods is obviously uncertain,which is manifested in: when interpreting the same problem,different judges choose different criminal law interpretation methods,or different judges use the same interpretation method differently,so that they come to different interpretation conclusions for the same problem,that is,"the same case is sentenced differently".In the research,there are two issues: "What are the interpretation methods of criminal law" and "How to use the interpretation methods of criminal law",which are confusing,and the judges do not follow them.This paper will try to solve these problems,hoping to provide theoretical and methodological support for the application of criminal law interpretation methods in the judiciary.In addition to the introduction and conclusion,the full text includes the following five parts:The first part,"The causes and solutions of the problems in the research of China’s criminal law interpretation methods",aims at analyzing the existing problems in the current research of China’s criminal law interpretation methods in depth,and on this basis,puts forward targeted solutions and ways to achieve them.At present,there is confusion in the theoretical study of the interpretation methods of criminal law in China,which mainly comes from three aspects: first,it is influenced by the research ecology of the same subject in the field of law;Second,many researches in the field of criminal law are self-reliant,and there is no consensus on the scope,relationship and application rules of criminal law interpretation methods.Third,many studies in the field of criminal law are partial and lack of overall grasp.In view of the problems existing in the research of criminal law interpretation methods and their causes,the overall solution is to seek consensus,grasp as a whole and be honest and innovative.The concrete ways to realize it are as follows: First,correctly define the connotation and extension of criminal law interpretation methods;The second is to systematically clarify the related relations of criminal law interpretation methods,including external relations and internal relations;The third is to construct the application rules of practical interpretation methods.The second part,"Definition of criminal law interpretation methods",aims to define the connotation and extension of criminal law interpretation methods,and on this basis,make a classified study of criminal law interpretation methods,so as to grasp the characteristics and operating principles of each interpretation method.The research holds that the method of criminal law interpretation is the feasible path and argument adopted by the interpreter to explain and reason the criminal law text,and it is also the thinking norm that limits the arbitrariness of the interpreter.The interpretation method of criminal law has three functional characteristics: guidance,demonstration and restriction.When defining the extension of criminal law interpretation methods,based on the functional characteristics of criminal law interpretation methods,some "methods" that are not methods are excluded,including typical "methods" that do not have the function of criminal law interpretation methods,general methods in general sense,suspected interpretation methods,etc.Then,it is determined that the scope of criminal law interpretation methods includes: liberal arts interpretation and theoretical interpretation,the former includes grammatical interpretation and grammatical interpretation,while the latter includes systematic interpretation,objective interpretation,natural interpretation,opposition interpretation,comparative interpretation and historical interpretation.According to its role and position in criminal law interpretation,the methods of criminal law interpretation are divided into primary methods and secondary methods.Methods mainly refer to the methods that occupy the main position in criminal law interpretation and play a leading and dominant role in criminal law interpretation,including grammar interpretation,grammar interpretation,system interpretation and purpose interpretation.Secondary method refers to the method that occupies a secondary position in the interpretation of criminal law and has an auxiliary function to the main method,including natural interpretation,opposing interpretation,comparative interpretation and historical interpretation.The definition of criminal law interpretation methods in this paper has the following characteristics: First,it excludes some "methods" that are not methods;Second,inherit the mainstream dichotomy but reconstruct its content.Third,distinguish the primary method from the secondary method.The third part,"clarification of the relationship between criminal law interpretation methods",aims to grasp and systematically clarify the relationship between criminal law interpretation methods as a whole,including both the external relationship closely related to criminal law interpretation methods and the internal relationship between criminal law interpretation methods.External relationship refers to the relationship between criminal law interpretation methods,criminal law interpretation concepts and positions.The interpretation idea of criminal law should adhere to the rule principle,and the relationship between the rule principle idea and the interpretation method of criminal law is a kind of macroscopic guidance and guidance.The interpretation position of criminal law should adhere to the objective interpretation,and there is also a relationship between the objective interpretation position and the interpretation methods of criminal law.It points out the interpretation path for the choice and application of the interpretation methods of criminal law,and leads the interpreter to realize the interpretation task.The internal relationship of interpretation methods of criminal law refers to the relationship among various methods.First of all,there is a primary-secondary relationship as well as a subordinate relationship between the primary method and the secondary method.Secondly,within the main methods,there is not only the complementary relationship in functions,but also the sequence relationship in operation.There is a basic order relationship between the interpretation of arts and sciences,which is the upper method of grammar interpretation and grammar interpretation,and the interpretation of reasoning,which is the upper method of system interpretation and purpose interpretation.There is the following sequence relationship among the main methods: grammar explanation-grammar explanation-system explanation-purpose explanation.Finally,compared with the main method,there is no direct order relationship between the secondary methods,but the order relationship attached to the main method.The correlation of criminal law interpretation methods determined in this paper not only clarifies the external and internal relations of criminal law interpretation methods as a whole,but also selectively absorbs the existing research results,and finally clarifies the relationship among various methods.The fourth part,"the construction of rules for the application of criminal law interpretation methods",aims to comprehensively construct the practical application rules of each interpretation method from the microscopic point of view,including the application rules between the main method and the secondary method,the application rules of the main method and the application rules of the secondary method.It is of great significance to construct the application rules of criminal law interpretation methods,both in theory and in judicial practice.Based on this,the construction of application rules of criminal law interpretation methods must be clear,controllable and orderly.The application rules between primary and secondary methods include coordination rules and obedience rules.The former refers to the rules formed by the coordination of primary and secondary methods to complete the task of criminal law interpretation;The latter means that in the interpretation of criminal law,the secondary method must obey the application rules of the primary method to which it is attached.The application rules of main methods include not only the application rules between main methods,but also the application rules of main methods themselves.The application rules among the main methods are as follows: first,the interpretation of arts and sciences,then the interpretation rules of reasoning;Grammar interpretation before grammar interpretation rules;The rules of system interpretation before purpose interpretation.The self-application rules of each method are: grammar interpretation rules,grammar interpretation rules,system interpretation rules and purpose interpretation rules.The application rules of secondary methods include not only the application rules between secondary methods,that is,the application rules attached to the main methods,but also the application rules of secondary methods themselves,that is,the rules of course interpretation,opposition interpretation,comparative interpretation and historical interpretation.The typical characteristics of the construction of application rules of criminal law interpretation methods in this paper are: not only the construction of application rules between methods,but also the deepening of the application rules of each method itself.The fifth part,"Practical Response to the Application of Criminal Law Interpretation Methods",aims to demonstrate the application of the methods and rules defined in the previous article,and to respond to the interpretation of three controversial criminal law texts,such as prostitution,theft and Article 225,Item 4of the Criminal Law,which are involved in the Introduction.In the criminal law interpretation of "prostitution",the main method and the secondary method are comprehensively used,and it is concluded that "prostitution" refers to the promiscuous behavior of having paid sexual intercourse with unspecified people or inserting sexual organs,and non-intrusive contact pornographic activities such as masturbation,wave pushing and foot pushing do not belong to "prostitution" in the sense of criminal law.In the criminal law interpretation of "theft",the main method and the secondary method are comprehensively used,and it is concluded that "theft" refers to the act of secretly stealing other people’s public and private property for the purpose of illegal possession.Therefore,"public theft" is not theft in the sense of criminal law,but robbery.In the criminal law interpretation of Item4 of Article 225 of the Criminal Law,the main method and the secondary method are comprehensively used,and it is concluded that the act of purchasing corn without obtaining a grain purchase license does not belong to Item 4 of Article 225 of the Criminal Law and does not constitute the crime of illegal business operation,but should be regulated by administrative means.The innovation of this paper lies in:First,redefine the scope and types of criminal law interpretation methods.First of all,this paper excludes some "methods" that are not methods,and redefines the extension of criminal law interpretation methods.Secondly,it inherits the mainstream dichotomy of liberal arts interpretation and logical interpretation,but reconstructs its content.Finally,according to the position and function of each method in criminal law interpretation,the main method and the secondary method are distinguished.Second,re-clarify the relationship between criminal law interpretation methods.Clarify the external and internal relations of criminal law interpretation methods as a whole.When studying the internal relations of the interpretation methods of criminal law,the author adheres to the idea of seeking consensus in differences,absorbs the existing research results,and clarifies the relations among different levels of methods.Thirdly,the application rules of criminal law interpretation methods are constructed from three levels: first,the application rules between the main method and the secondary method;Second,the application rules of main methods,including the application rules between main methods and the application rules of main methods themselves;It is the application rules of the three secondary methods,including the application rules between the secondary methods and the application rules of the secondary methods themselves. |
