| With the strengthening of the administrative function of the state,the number of statutory crime in criminal legislation has increased significantly,which can also be confirmed in the latest criminal law amendment.In practice,a series of controversial judicial cases emerged,which implied the risk of expanding and blurring the boundary of criminal law intervention,and in essence was an improper restriction on the freedom of public behavior.Therefore,it is urgent to correct the improper application of statutory crimes and restrict the judicial expansion of statutory crimes to maintain the public’s freedom of behavior.In this thesis,the main body is divided into five parts according to the logic of raising problems,analyzing reasons,and then seeking solutions.The first part summarizes the current situation of judicial expansion of statutory crimes,which points out the problems this thesis will solve.Through the judicial data to reveal our country statutory crime rate is extremely high,the innocence rate is extremely low.Taking the controversial cases existing in judicial practice as examples,this thesis analyzes the situation of the judicial expansion of statutory crimes and summarizes the specific manifestations of the judicial expansion of statutory crimes as follows: the formal explanation of the constitutive elements of statutory crime,the absence and improper identification of guilt.The second part explains the negative effects of excessive judicial expansion,demonstrates the necessity of judicial restriction of statutory crime,and analyzes its causes.This thesis sums up three reasons for the judicial expansion of statutory crimes: first,the prevalence of the concept of "judicial restraint";second,the improper judgment of the illegality of statutory crimes;third,the violation of the doctrine of responsibility.The third,fourth and fifth parts are based on the reasons summarized in the second part respectively to elaborate the idea of limitation.Specifically speaking,the third part,after analyzing the shortcomings of judicial passivism and judicial activism,advocates soft judicial activism,and then puts forward the construction path of soft judicial activism.The fourth part puts forward the reconstruction idea of illegality judgment.After a comparative study of different theoretical positions of illegality judgment at home and abroad,this thesis puts forward the position of relative subordination of criminal law.It points out the basic significance of the concept of the unity of legal order and the principle of legal interest protection to the judgment theory of illegality,and then puts forward the method of limiting the interpretation of the illegal elements from the aspects of form and substance,and carries out the judgment of the form and the substance of the illegality.The fifth part proposes that the judicial application of statutory crimes should adhere to the macro principle of responsibility doctrine and the specific rules of guilt identification,discusses the influence of illegality cognition on the subjective intention of statutory crimes,and proposes that the awareness of social harm should be the core to deal with the cognitive error of legal crimes.To be specific,in the judicial practice of the determination of subjective guilt of statutory crime,we should be careful to use the presumption of general intention,and prevent the establishment of intention simply from the result;As for the existence of cognitive error,we should take the social harm consciousness as the core to determine whether there is a premise of responsibility. |
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