The Legitimacy Basis Of Legal Fiction In Criminal Law

The term legal fiction first appeared in Roman law and also has had a wide range of application in modern law fields like civil law and jurisprudence etc. In China’s criminal law, although legal fiction abounds, it is not a familiar concept and the research of it is also rarely involved by scholars. In the theoretical cycle, different theories about the concept of legal fiction in criminal law have occurred, while no unified understanding has been formed yet. In judicial practice, whether it is Zhou Desheng being extorted confessions by torture causing death case, Huang Jianxin insurance fraud case or Ye Guangming affray causing death case, all of which had triggered intense discussion among the scholars. On the basis of fully reviewing the status quo of the research of legal fiction issues, the author, based on the legitimacy basis of legal fiction, strives to resolve the controversial issues of legal fiction and tries to provide strong support in both theory and practice to the application of legal fiction.This paper is divided into three parts including introduction, text and conclusion, and the text has four parts.The first part puts forward the question of this paper: how to define legal fiction in criminal law. Three typical cases occurring in judicial practice are taken as examples to prove that the identification difference between legal fiction and provision of attention would deliver different verdicts, thus causing confusion in judicial practice. “Presumption and assumption theory”, “decisive fiction theory” and “operation technology theory” have their respective rationality and defects, the author, after detailed comparison and analysis, adopts partial reasonable views of “decisive fiction theory” and “operation technology” and ultimately summarizes the concept of legal fiction. In practice, there are also controversial issues for legal fiction; the author summarizes three specific focuses of controversy, in order to accurately define the legal fiction issues.The second part discusses the application of legal fiction in criminal law and draws the conclusion that such application shall be limited to legislative fiction rather than be applied in judicature. Indeed the judicial fiction has played an indelible role in history, especially in common law countries it had played an enormous role on the formation and development of the common law. While along with the requirements of statutory rules in criminal law, the legal fiction has gradually been much more shown in legislative fiction. Judicial fiction has analogy suspects, which not only violates the principle of nulla poena sine lege, but also deviates from the modest and restrained principle of criminal law. However, legislative fiction is an exception of legislation; it belongs to the scope of legislative power, does not violate the basic principles of criminal law and also possesses certain rationality. Although judicial fiction exists in China, the defects of it are obvious and it shall be rejected and excluded.The third part demonstrates the legitimacy of legal fiction set in criminal law. Although some scholars raise censures and questions about the legitimacy of legal fiction, the author believes that legal fiction has legitimacy, the basis of which not only includes the modal foundations of the actual law, but also includes the essential foundations of the ideal law. The modal foundations mainly include legality and uniformity. The essential foundations mainly include three points which are coordinating with principle of suiting punishment to crime, complying with the demands of substantial justice and the criminal policy tempering justice with mercy.The fourth part distinguishes legal fiction and provision of attention on basis of discussion of the legitimacy basis of legal fiction, thus to solve the issues in practice. The concept of legal fiction and the concept of provision of attention are a set of corresponding concepts in criminal law and are extremely confusing in China’s Criminal Law. Especially for some controversial provisions, whether they belong to legal fiction or provisions of attention, the scholars and judicial staff all stick to their own opinions. The author first clarifies the link between legal fiction and provision of attention, and further summarizes the distinction significance and standards. About legal fiction and provision of attention, the following two points must be noted: first, when determining whether an article belongs to legal fiction or provision of attention, the principle of systematical interpretation can be used to conduct analysis with related different articles. Second, legal fiction cannot be considered as provision of attention, nor can provision of attention be considered as legal fiction. As to the distinction standards of legal fiction and provision of attention, after the analysis of the “five whys” proposed by Professor Zhang Mingkai, the author summarizes her own point of view, outlines some of the controversial provisions to demonstrate and believes that the distinction standards of legal fiction and provision of attention in criminal law are as below: whether the content of certain article has changed or rectified the content of condition clause; whether there is significant difference between the prescribed behavior and the criminal behavior stipulated in condition clause and whether the provision can be generalized or whether it has general applicability.