A Study Of Analogical Explanation Issues In Criminal Law

Analogy,also known as the application of analogy,refers to reason out some other thing’sconnotation based on a certain similar things’ connotation.Analogical thinking andexplanation are two kinds of forms of manifestation for analogy.Analogical thinking andanalogical interpretation are two forms of analogy.Analogical thinking is customary,it has aclose relationship to the interpretation of criminal law. On the one hand, the interpretation ofcriminal law is based on the analogical thinking,the interpretation of criminal law often usessimilar thinking.By comparing the normal legal languages,it can obtain the explanationconclusion.But the conclusion obtained by the analogy thinking must be in the range ofpossible meanings of the legal norms On the other hand,whether the interpretation of criminalis beyond the rang of possible meaning is the standard to distinguish the analogyinterpretation and other interpretation,the principle of legality does not prohibit the analogicalthinking,but prohibit the analogical interpretation.All countries’ criminal law clearly stipulates the legal principles of crime andpunishment, so they explicitly prohibit the analogical interpretation. The specific reasons areas follow: the analogical interpretation is beyond the scope of the meanings of criminal laws’terms, which means the abuse of penalty: it could constitute a violation to the personal rights,damage the stability of the criminal law and infringe the legislative power. To prohibit theanalogical interpretation under the principle of legality has been though a process byprohibiting all analogical interpretation to prohibiting the analogical interpretation which goagainst the defendants and exceed the scope of the criminal law’s interpretation. Now, allnational criminal law and criminal law theory allow the analogical interpretation which isfavorable to the defendant and does not exceed the scope of the criminal law’s interpretation.The allowed analogical interpretation, which is also called the restricted analogicalinterpretation, is refers to make the explanation to the criminal rules which exceed the scopeof the criminal law’s interpretation, but is favorable to the defendant. The allowed analogicalinterpretation not only meet the basic needs of the legal principle of crime and punishment bylimiting the penalty power to protect human rights, but also is conducive to realize theneminem value goal of the criminal law. However, the allowed analogical interpretationrequires three conditions: the first is to be in favor of the defendant; the second is to be infavor of the defendant’s case; the third is the objects to the allowed analogical interpretation are similar to the contents of the criminal law norms. The basic principle of the allowedanalogy which is favorable for the defendant is the appropriateness of punishment; thespecific operation follows three steps: first, the criminal law should confirm the existence ofloopholes; second, look for the criminal law provisions which is similar to the situation andthe facts of a case; third, confirm the types between case facts and legal facts.Both of the analogical interpretation and expanding interpretation are the expansion tothe meaning of criminal law terms, but because of the analogical interpretation expands themeaning of the terms by going beyond the scope of the meaning of criminal law terms,therefore it is prohibited by the legal principle of crime and punishment. And the expandinginterpretation makes exceeded interpretation to the criminal terms within the scope of themeaning of criminal law terms, therefore it is allowed by the legal principle of crime andpunishment. Analogical interpretation and objective interpretation make explanations to thecriminal law terms from the same perspective of protecting the criminal law’s legal benefits.But because of the analogical interpretation protects the legal benefits by the methods whichgo beyond the scope of the meaning of criminal law terms, therefore it is prohibited by thelegal principle of crime and punishment. And under the purpose of protecting the criminallaw’s legal benefits, the objective interpretation seeks the true meanings of the criminal lawterms within the scope of the meaning of criminal law terms, therefore it is allowed by thelegal principle of crime and punishment.