Explanation Of Blank Count Under The Principle Of Legality

The blank count is an inevitable outcome of the development of social economy and technology to a certain stage.With the deepening of the complicated economic and administrative relations and the degree of specialization regulated by legal norms,in order to determine whether an act constitutes a crime under the condition of blank count,it is necessary to pass the judgment to the professional laws and regulations in this field,which makes the blank count double illegal.The Standard of judging whether the provisions of the criminal law belong to the blank counts should be whether the concrete constitutive requirements of the crime should be determined by referring to other non-criminal legal norms,regardless of whether the provisions contain the description of “Violating...”.It can not be considered that the elements of blank crime need to refer to other non-criminal legal norms is limited to the elements of conduct,because the subject of crime,the object of crime and other elements also need to refer to other non-criminal legal norms.The supplementary norm of blank count is the content of the delegated legislation authorized by law,and does not violate the requirement of the exclusive law of the Nulla Poena sine lege;the reference to the supplementary norm is a question of the application of law rather than legislation,the organ that formulates the blank count belongs to the organ that represents the public opinion and conforms to the formal democracy,in addition,all or part of the specific element of crimes in specialized fields which can not be covered by the criminal law shall be handed over to special laws and regulations in conformity with substantive democracy,and the blank count shall not violate the democratic requirements of the Nulla Poena Sine Lege;The blank count refers to the application of non-criminal legal norms are clear and specific norms,in line with the democratic requirements of the Nulla Poena sine lege.Administrative regulations are not the direct basis for conviction and sentencing,which requires an independent criminal law judgment by a judge in the course of judicial application,and supplementary norms are only the basis for determining the specific element.Therefore,the formulation of the blank count does not violate the Nulla Poena sine lege,but the blank count in the legislative aspects of the provisions of the additional norms may lead to the violation of the principle of legality clear requirements,to the detriment of national predictability.In the process of judicial application,there are some problems such as extending the scope of supplementary norms improperly and judges relying too much on administrative judgment,which will lead to the loss of independence of criminal law and even the materialization of administrative power.The theory of formal interpretation holds that the interpretation of criminal acts can only be within the range of the possible meaning of Criminal Law provisions,the formal rationality of the principle of criminal law requires that acts that are substantially socially harmful but fall outside the scope of the provisions of the Criminal Law should not be recognized as crimes.The theory of substantial interpretation holds that although the act can not be included in the possible meaning of a crime,it infringes on the legal interests protected by the provision because of its substantial social harmfulness,it should be included in the evaluation of the crime.In the interpretation of the provisions of the criminal law,especially the blank counts,we should advocate the position of formal interpretation,insist on the possible meaning of the provisions of the Criminal Law as the boundary,and for the acts that conform to the provisions of the criminal law but do not have substantial punishability,it is necessary to make a substantive judgment and deal with them as crimes.The interpretation of the provisions of the Criminal Law gives priority to a literal interpretation,and only when the answer can not be obtained through a literal interpretation can a systematic interpretation and a purposive interpretation be adopted,the judge should insist on the independent judgment of Criminal Law when convicting and sentencing,and should not regard the act as having administrative illegality without discriminating it as having criminal illegality.When explaining the blank count of a crime,we should also adhere to the principle of the same legal interest,when supplementary norms stipulate an act as an administrative illegal act,the legal interest to be protected must be identical with the legal interest to be protected by criminal law before the act can be considered as a crime At the same time,we should stick to the rule of validity grade and the rule of non-necessity of criminal responsibility,and maintain the principle of legality and the independence of criminal law.