A Study Of Systematic Interpretation In Criminal Law

The interpretation on criminal system is mentioned in many articles,texts,but the criminal system has not been constructed reasonably and systemly.in many articles,the criminal system is deemed the closed system of criminal law,which includes the relations between the criminal provisions of the particular offences.not including general criminal provisions because they are abstractive and include value judgement.in other articles,the interpretation and application of the criminal provisions of the particular offences depend on the criminal system including both general criminal provisions and particular criminal provisions.but how to deal with the relations between the general provisions and particular provisions is not constructed.from the XuTing case,we can find common sense has been insulated against justice.the notion of the criminal system is not realized by justice,and the interpretation and application of the particular criminal provisions are not restricted and directed by the general criminal provisions in criminal justice.so the interpretation on criminal system is ignored both in theory and in reality.criminal system is needed to be constructed,and the particular criminal provisions are needed to be interpreted in the harmonious criminal system.The article is consisted of five parts.the first is the basic theory of the interpretation on the criminal system.the bases of the theory of subjective interpretation are tradional hermeneutic,the theory of the mechanical separation of three powers and the supreme value of the certainty.the shortcomings of the bases are analyzed.this article is accordant to the theory of the objectibe interpretation from start to end.the reasonable application of the criminal law is the core of the concept of the interpretation on the criminal system.interpretation is not for interpretation,but for reasonable application.the principles the legality and the legitimacy are the principles of the interpretation.the principle of the legality not only requires that interpretation and application of the particular criminal provisions accord to the possible meanings of the words,but also requires that the interpretation and application of the particular criminal provisions accord to the criminal system,based on the constitution,premised on the understanding of the non-criminal law exactly,guided by the basic principles of the criminal law,restricted by the general provisions of the criminal law.the principle of the legitimacy requires that the interpretation and application of the particular criminal provisions should be founded on the common sense.hermeneutic circle means that understanding the integrity begins with the part,while understanding the part premised on the integrity.the interpretation and application of the particular criminal provisions not only depend on the legal system,but also the common sense,maybe named nonwritten rules.The second part is the closed system of the criminal law versus the open system of the criminal law.human beings is entitled with the nature of desire,which pushes human beings to understand various objections experiend systemly.the interpretation and application of the particular criminal provisions are not reasonable depending on the conflict system.the closed system of criminal law emphasises on the relations between the particular criminal provisions,pestered the possible meanings of the words,insulated it against social needs;decisions depend on the formal logic,exclude the value judgement of the justice;the certainty placed on the supreme position.in the open system of the criminal law,the common sense is in the fundamental position,and the open system is linked to social need directly;the open system emphasises on understanding words in the system,admits the value judgement of the justice,restricts the arbitrary will and prejudice of the justice,in the open system,the criteria of the criminal decisions is not the formal logic,but the acceptability of the people.the common sense is more dominant than the formal logic in the interpretation and application of the criminal law.The third part is the closed system of the criminal law.the spirit of the closed system is to restrict the value judgement of the justice.the particular criminal provisions are prefered because of its certainty.the certainty of the particular criminal provisions maybe easily ignore the various and changeable facts and fall into mechanical and rigescent system.the closed system itself is not blamed,in the contrast,it is important part of the criminal system,and the open system does not exist unless the closed system is the part of the criminal system.the certainty of the law is still very important,though it is not entitled with the supreme position.The fourth part is the open system of the criminal law.how to harmonize the certainty and the flexibility,stability and varibility?only in the open system,can the value conflict be harmonized..the aim of the criminal law,the basic principles of the criminal law,the reasonable provision of the criminal law,the principles of the constitution,and the common sense constitute the open system of the criminal law.the former four factors may be called written rule,while the latter factor may be called unwritten rule.through the brige of the written rules,social need is used to direct the interpretation and application of the criminal provisions of the particular offences,to realize the evolution of the criminal law. The last part is the relations between the interpretation on the criminal system and other main methods of the criminal interpretation.if the criminal system is deemed the open system,then the interpretation on the plain meaning of the words,the interpretation on the history of the criminal law and the interpretation on the aim of the criminal law all belong to the interpretation on the criminal system,because both the plain meaning of the criminal words,and the social need when the criminal law was enacted and the aim of the criminal law,are the factors of the open system.