The Standpoint And Practice Of The Substantial Interpretation Theory Of The Criminal Law

At present, there are debates between formalistic interpretation theory and substantialinterpretation theory of criminal law application in China. The controversy stems from theprinciple of legality under the form of the rule of law concept with a different understandingof the substance of the rule of law concept, and it is manifested as a grasp of the terminologyto explain the limits of the criminal law provisions. In this paper, a deeply differentiating andanalysis reveals the core issue of the debates and holds the standpoint of the substantialinterpretation theory in the criminal law application. Substantial interpretation theory onrationality not only takes into account the formalistic side and substantial side of the principleof legality about protecting human rights and preventing judicial trespass off, but alsoexplains the substantial interpretation theory on the philosophical foundation of philosophicalhermeneutics from the Penal Code, which it reveals the elements and characteristics of thecriminal law interpretation. Gadamer said "Hermeneutics is not used to develop a process ofunderstanding, but to clarify the conditions of the occurrence of understanding." Under theguidance of the philosophical hermeneutics, upholding the substantial interpretation theorymeans to positively support the interpretative subjectivity and the standpoint of criminal law;it also means to innovate the mode of thinking of criminal law. Implementing substantialinterpretation theory of criminal law would enable judges to think more precisely.This paper contains three parts.At the beginning of the first part, the author is going to introduce formalisticinterpretation theory and substantial interpretation theory of criminal law application in China.Then the author would discuss the controversies between the two theories. From theperspective of the author, both theories obey the principle of legality and have the same goal,the same constitute of conformity judgment and the same cognition of concrete method of theinterpretation of criminal law. The controversy is how to properly interpret criminal law andhow to balance the conflicts between formalistic rationality and substantial rationality withpriority. Through the discussion, the article further elaborates on the substance ofinterpretation theory, pointing out that the real explanation for the theory held plentycompliance under the forms of rationality to seek substantive rationality stand, this position isconsistent with the openness and the fact that the complexity of the legal text. Furthermore,the substance of interpretation theory has the philosophical hermeneutics inherent logic, uphold the real explanation on stance conducive to the interpretation of criminal law thinkingthe exact extent of the building.The second part focuses on the philosophical hermeneutics. This part starts from thehistorical development of philosophical hermeneutics and representative view of the sort. Byanalyzing the innovation of the philosophical hermeneutics to the traditional methods of lawinterpretation, the philosophical hermeneutics reveals the elements of the criminal lawinterpretation, including the legal interpretation of subjectivity, interpreters the value stance aswell as to explain the subject before understanding the major role in the interpretation of theactivities. The article analyzing has pointed out that the internal rationality of the substantialinterpretation theory in the view of the philosophical hermeneutics. Judges need to grasp thesefactors and hand the process of the interpretation of criminal law, so as to better exploreobtain legal and reasonable explanation conclusions.The third part begins with the dilemma of the traditional judicial syllogism in theapplication of the law. The dilemma bases on the traditional philosophical epistemologydichotomy of objective or subjective, fact or value. In the judicial syllogism, the core is thatcalled "Subsumtion", witch means the subsumption relationship of the major premise to theminor premise. But it is hard to comprehend that how the rules subsume the facts. Under theguidance of the philosophical hermeneutics, the law can be considered a "corresponding ofthe oughtness and the isness." The relationship of the rules and the facts in the legalapplication process is not that facts being reflected, but equalization between rules and facts.The structuring of the major and minor premise is a process of "eyes constantly focusingintercourse between facts and norms. Criminal law applicable mindset through thetransformation of philosophical hermeneutics, including an analysis of the facts, lookingspecification, the specification and the fact hermeneutical circle structuring the major andminor premise, the conclusion several parts of subsumption through deductive reasoning. Thislaw applies to the process is referred to as the equalization mode. And so, the equalizationmode of law application is on the basis of the type of thinking. The rules and the facts arecompared with the type of thinking. This process, Kaufman called it "analogy", their point ofintegration is the" nature of things ".