| First of all, I must apologize for the limitation of ability to give a deep research on the value of guarantee of criminal law. The value of guarantee of criminal law is a quite common-used word but lack of an explicit definition of its meaning. The nowadays-theoretical definition of value of guarantee of criminal law is after the formed meaning of guarantee of criminal law and function of guarantee of criminal law. Here I must admit that I also use the basic meaning of the function of the guarantee of the criminal law to help defining the brief meaning of the value of guarantee of criminal law and define the value of guarantee of criminal law as the expressing of the function of guarantee of criminal law. On the other hand, I do not agree with the idea that value of guarantee of criminal law is equal to the function of guarantee of the human rights of criminal law. The reason is that I have quite different understanding of the meaning of human rights. To introduce the definition of human rights into the range of the study of criminal law is not suitable. First of all, we still have some confusion on the legal characteristics of human rights. The basic form of judgment of law is legal or illegal. But human rights belong to none of them. Secondly, the meaning of human rights is too hard to define. The meaning of human rights in science of criminal law cannot be used as freely as it in the realm of other social science. This is because that the science of criminal law needs a more explicit operative standard of meaning. Consequently, in face of such a wide meaning word, human rights, the science of criminal law feels hard to absorb. Hence, I avoid using the word of human rights directly, and classify it in the scope of rights. So the value of guarantee of criminal law in my paper is quite different from that in common theoretical belief. Based on illustrating the form of the value of guarantee of criminal law, my thesis then gives an account on the value of guarantee of criminal law in the range of interpretation of criminal law and the reconstituting of the conception of interpretation of criminal law. In Chapter One, I give a brief analysis on the value of guarantee of criminal law and the conception of interpretation of criminal law. I classify the form of the value of guarantee of criminal law into the value of guarantee of the interest of people of criminal law and the value of guarantee of the interest of the defendant of criminal law. I believe that the value of guarantee of criminal law embodies as the avoidance of the interfering of the judicial power of criminal law to the common people and the defendant. On the view of guarantee of criminal law, criminal law should be the limitation of the power of judicial power of criminal law. While the effects of the value of guarantee of criminal law on the conception of interpretation of criminal law then realizes as that the subject of interpretation of criminal law takes the value of guarantee of criminal law as its basic principle that can revise its belief, conception and positive results. In Chapter Two, it mainly talks about the reconstituting the conception of safety of the criminal law. First of all, I define the safety of the text of criminal law that the value of guarantee of criminal law pursues as the safety of human nature of criminal law. It means to safeguard the interest of people and to give a guarantee of safety of people's interests. Secondly, I define the flaws of criminal law as the defects of the running criminal law in meeting the need of the nation and the society to give the criminal penalty on some specificbehaviors. And then I try to give some suggestion on covering the flaws of criminal law. Because using the interpretation of criminal law to cover the flaws of criminal law is to release the limitation of criminal law to criminal judicial power intentionally, the action of punishing the social harm by the judicial power beyond the lawful functioning range of laws is sure to be the interfereme of the interest of people. Thirdly, according to the differences of value of the social interpretation of criminal law and the judging interpretation of criminal law, I give a general account on the relationship of interpretation of criminal law and the meaning of the text of criminal law, and then get aim of pursuing for coherence and correction of interpretation of criminal law. Finally, I evaluate the rationality of interpretation of criminal law. I believe that giving the unsuitable power of revising the criminal 1 law to judges has threatened the safety of legislation of criminal law and the text of criminal law. However, that the judge pursues the idea of "in favor of the defendant" on the demand of the rationality of the interpretation of criminal law conflicts with the value of guarantee of criminal law because of its different conception of value. In Chapter Three, I mainly talk about the authorized interpretation of criminal law and discuss on the legislative interpretation that has special status and the force adeffect of judicial interpretation of criminal law. Firstly, according to law of legislation, legislative interpretation has the same force with the text of law, but I have got the different opinion on its force basing on the difference procedure of legislative interpretation and legislation. Secondly, I do not agree with the idea that the judicial interpretation has the same force adeffect. Because the essence of criminal law is to confine the power of judicial power, it is to negate the text of law that permitting the judicial... |
