Criminal Law Interpretation. Volume 7

Author: Chen Xingliang
Publisher:
Publishing Date: 2004-04-01
Features: The 7th volume of Criminal Law Case Studies has been compiled and is about to be printed. Based on the editing experience of the previous six volumes, starting from this volume, both in content and form, Criminal Law Case Studies will undergo some adjustments. In terms of content, Criminal Law Case Studies will continue to adhere to its style of, absorbing more judicial practitioners to participate in discussions and research. In terms of form, the publication cycle will be accelerated, the length of each volume will be appropriately reduced, and changes will be made to the layout. I believe that with these adjustments, Criminal Law Case Studies will undergo a transformation and become more attractive. An important mission of Criminal Law Case Studies is to interpret laws and judicial interpretations. It can be said that legal interpretation is the prerequisite for legal application. There are two approaches to legal interpretation: one is linguistic, and the other is logical. Of course, there is a connection between the two. Ancient Chinese jurisprudence, as a legal interpretation theory, was primarily language-based. It can be said that China's emphasis on linguistic interpretation and the West's emphasis on logical interpretation have formed two completely different styles. Therefore, the discovery methodology of ancient Chinese law was also centered around the interpretation of language (text). The Chinese people have a sensitivity to language, and reading laws is mainly about understanding the subtle meanings of legal provisions through language. Recently, I read Wang Mingde's Perceptions on Reading Laws, and I was deeply moved. Wang Mingde proposed eight methods for reading laws in the book, which can be considered his experience. What are the eight methods? First is grasping the essence, second is outlining the key points, third is tracing the sources, fourth is cross-referencing, fifth is distinguishing, sixth is balancing the heart, seventh is gathering meanings, and eighth is selflessness. Among these eight methods, grasping the essence and outlining the key points both refer to identifying the key points. There are hundreds or even thousands of legal provisions, and some must be key provisions. Truly understanding these provisions can achieve the effect of "understanding one and applying ten" and achieving twice the result with half the effort. In addition, for example, cross-referencing is also a very important method for understanding legal provisions. As Wang Mingde said: "The meaning of laws is precise and rigorous, making it difficult to add redundant provisions. Therefore, the meaning is often interwoven among various legal provisions." Thus, cross-referencing is essentially a systematic interpretation of laws. In the book, Wang Mingde also discussed the "law mother" and "law eye." Wang Mingde said: "The law has eight characters—, , , , , , , —as annotations, placed at the beginning of the law, labeled as the meaning of the eight characters. They are traditionally called the 'law mother.' These eight characters are known as the method of reading laws, and Wang Mingde quoted Su Zizhan, a Song Dynasty Confucian scholar, as saying: 'One must first understand the meaning of the eight characters and then integrate and connect them before one can speak of reading the law.'" In addition to the law mother, there is also the law eye, which corresponds to the law mother. The law eye refers to , , , , , , , , , , , , , , , , , , etc. These are all key terms in the law and are crucial for understanding legal provisions. Wang Mingde elaborated on as follows: " means to attach, to be clear and conspicuous, like the sun and moon shining in the sky, making it clear for everyone to see, follow, and abide by. It is also beneficial. The legal authorities present it, and the ministers and officials discuss it. One person orders it, and hundreds of millions obey it. One day it is implemented, and it gradually becomes customary and convenient, hence the saying, '.'" Here, is equivalent to the general principles of modern criminal law and plays a role in the entire criminal law. Wang Mingde fully elaborated on the importance of . Among the above law eyes, some still guide our practice today. For example, , Wang Mingde said: "In , the stolen property is combined into one, and the severity of the crime is determined based on the severity of the property. Each person is charged with the crime that the property should deserve, hence ." This shows that is the principle of handling property crimes (equivalent to property crimes in modern criminal law) in ancient Chinese criminal law, and this principle is still prevalent in the current criminal law of our country. Of course, the usage of some words in the law eyes has some differences from the present. For example, , Wang Mingde said: " means that there is no legal reduction, but it can be reduced based on empathy and reasoning. means to reduce it because it cannot be reduced, hence ." Here, refers to extralegal reduction, equivalent to what we now call discretionary reduction. In modern Chinese criminal theory, reduction is divided into mandatory reduction and discretionary reduction, both of which are legal reductions: mandatory reduction means that it should be reduced, and discretionary reduction means that it can be reduced. This shows that in modern criminal law is different from ancient criminal law. Another example is the word , which is also frequently used in modern criminal law and is called the , with the distinction between turning but and exceptional but. It is generally still used in the original sense of the word . However, the in ancient criminal law is different. Wang Mingde said: " means to be light. It is not necessary to delve deep into it; only a slight involvement is needed. For example, the color dyeing an object does not need to be deeply dyed and soaked to be clear and distinct; only a slight touch of its difference is enough, and then the original appearance is lost, and it no longer retains its original color. Hence the saying, '.' The law places great emphasis on but to make it strict. This is completely different from the use of empty meanings in the text as a turning point. For example, in the article on plotting rebellion and great rebellion, it is stated: 'In all cases of plotting rebellion or great rebellion, but those who conspire are not distinguished as leaders or followers and are all executed in a slow and cruel manner.' This article uses the meaning of but to refer to both those who have acted and those who have not. After all, all laws are divided into severity based on whether they have acted or not, but this does not consider whether they have acted or not; as long as they were present during the conspiracy, they are held responsible. This is because it is important to severely punish conspiracy and rebellion." The above is a brief introduction to the essence of Wang Mingde's law studies, which reveals the high achievements of ancient Chinese law studies. The essence of ancient Chinese law studies lies in the textual interpretation and the explanation of the principles of legal provisions, penetrating the barrier of words to grasp the essence of legislation. Although this linguistic study of criminal law is different from the logical study of criminal law, it is still worth inheriting. We read many foreign criminal law textbooks and have borrowed a lot, but we read very few books on ancient Chinese law, and I am no exception. Although my collection has several works on ancient Chinese law, I have read very little and borrowed even less. It is just to satisfy the "nostalgia for the past," which is very wrong. Our current annotations on criminal provisions are rough, chaotic, and off-topic, far from the precision, order, and relevance of ancient law studies. In this volume, two papers were published in the "Individual Crime Research" section. Wang Li's article "Research on Traffic Accident Crimes—From the Perspective of Traffic Accident Responsibility Identification" explores traffic accident crimes from a completely new angle. The current criminal law of our country adopts a blank crime description for traffic accident crimes, and the constituting of the crime is based on the violation of transportation management regulations. The relevant traffic management regulations serve as the boundary between crime and non-crime, and the determination of traffic accident responsibility as the prerequisite for constituting a traffic accident crime. In this case, whether the traffic accident behavior constitutes a crime depends entirely on the identification of traffic accident responsibility. This judicial practice practice makes it more convenient for courts to identify the crime, but it also brings some drawbacks. The author of this article, Wang Li, has long been engaged in the identification of traffic accident responsibility and has deep feelings about this issue and has accumulated a lot of materials. Wang Li is studying for a master's degree in law at Peking University Law School, and her master's thesis was supervised by me. I think her article is innovative and has also received praise from the thesis defense committee. Wu Xuebin's article "Research on Investment Fraud Crimes" provides a legal analysis of the crime description and constitutive elements of investment fraud crimes, especially the study of "with the purpose of illegal occupation" has certain significance. It is worth mentioning that both authors of the above two articles are judicial practitioners with rich judicial experience and have returned to university for further studies, achieving significant improvements in theory. In the "Criminal Law Application" section, three papers were published. Li Rong's article "On the Criminal Responsibility of the Leading Member of a Criminal Group" involves the scope of criminal responsibility borne by the leading member. This issue was previously not considered a problem in criminal law theory. According to the principle of the unity of subjective and objective, the leading member should bear criminal responsibility for the crimes within the scope of their organizational intent. The legislator also believes that according to the provisions of Article 26, Paragraph 3 of the Criminal Law, the leading members of organized and led criminal groups should be punished according to all the crimes committed by the group, that is, the leading member must bear criminal responsibility for all the criminal activities committed by the criminal group they organized and led. However, in subsequent judicial practice, doubts have arisen about this, especially in the identification of crimes involving organized criminal groups. How to define the scope of criminal responsibility borne by the leading member has been controversial in judicial practice and criminal law theory. I once heard of a case in a certain place: the public prosecution agency accused the leading member of an organized criminal group of instructing its members to kill others, but the defense attorney argued that the evidence was insufficient, and the court accepted the defense attorney's argument but believed that the leading member should bear criminal responsibility for all the crimes of the organized criminal group. Therefore, even without instructing, they should bear criminal responsibility. In cases where the leading member has no instruction to kill and no intention to kill, it is still deemed to constitute the crime of intentional homicide. These practices all violate the principle of the unity of subjective and objective in criminal conviction. Li Rong's paper provides a legal discussion on this issue, which I believe is commendable. Although the paper does not involve individual cases, it has general guiding significance for judicial practice. Liu Defa and Wang Guan's article "Discussion on Credit Card Crime Issues" explores several difficult issues in the identification of credit card crimes, especially malicious overdraft and the crime of using a credit card, which are difficult to distinguish between crime and non-crime, and this paper's in-depth discussion has positive significance. Professor Cui Min's article "Four Discussions on the Prudence of Capital Punishment" starts with the judgment and resolution of a case of intentional injury and conducts an in-depth discussion on the application of capital punishment. Professor Cui Min is a veteran in the field of criminal law and his concern for the rule of law in reality is moving. He has his own views on the application of capital punishment. He has repeatedly discussed the theme of prudence in capital punishment, and now he has discussed it for the fourth time, showing his deep commitment. The case discussed in this article, I also participated in the expert discussion. Intentionally causing the death of one person while being sentenced to three people to death immediately and one person to suspended death penalty, the severity of the penalty has already exceeded the standard of "killing for killing, one life for one life" in retributive justice. I remember that Cui Min professor once discussed this case at the symposium of the Supreme People's Court's special consultant, in the presence of President Xiao Yang of the Supreme People's Court, and said that this is not an individual case issue but a capital punishment policy issue. When arguing for the abolition or limitation of capital punishment, young scholars more often cite the materials of Western scholars, and this article cites the discussions of Marx, Engels, and Mao Zedong on "less killing," although familiar, still feels a sense of estrangement. Dai Youjiu's article "Three Discussions on Robbery after the Fact" explores three difficult issues in robbery after the fact, which often cause controversy in judicial practice and need to be argued from a legal perspective. In the "Criminal Procedure Law Application" section, three papers were published. Mo Hongxian and Wang Mingxing's article "Classification and Identification Standards of Criminal Cases" discusses the issue of the classification of criminal cases, which is also what we usually call the case cause. This issue is not only related to criminal procedure but also to criminal investigation and criminal statistics, and it has rarely been paid attention to in theory, so the discussion in this article is valuable. Qin Zongwen's article "Comparison and Reference: Solving the Problem of Repeated Prosecution in Our Country's Criminal Procedure" conducts an in-depth study of the issue of repeated prosecution in criminal procedure, especially the comparison and discussion of the double danger theory in common law and the principle of res judicata in civil law, which has strong academic value and practical reference significance. Not repeating prosecution has been included in international human rights conventions and is recognized as an accepted criminal justice standard in the international community and the bottom line of criminal rule of law. However, even such a criminal justice standard has not been confirmed in our country's criminal procedure law and judicial practice. The repeated initiation of prosecution procedures is not conducive to the retrial of the defendant, let alone the retrial of a death sentence, which is often carried out in the name of seeking truth from facts and substantial justice, which is a pity. Zhang Huifeng's article "How Institutions Are Implemented—A Study on the Implementation of Non-Custodial Criminal Compulsory Measures" conducts an empirical study on the implementation of non-custodial compulsory measures such as summons, surety, and surveillance, which has novelty in research methods and writing techniques. In the "Criminal Trial Materials" section, the "Trial Questions and Answers on the Application of Criminal Law (Trial)" compiled by the Criminal First Tribunal of the Higher People's Court of Shanghai was published. This material was sent to me by Dr. Huang Xiangqing, the president of the Criminal First Tribunal of the Higher People's Court of Shanghai. It was compiled by the Criminal First Tribunal and Criminal Second Tribunal of the Higher People's Court of Shanghai to summarize the experience of criminal trial in a timely manner and improve the book. This is a collection of theoretical articles on the study of criminal law case studies, with the purpose of reflecting new issues in the field of criminal justice.