Criminal Law Interpretations (Volume 7)

Author: Chen Xingliang
Publisher:
Publishing Date: 2004-04-01
Features: The 7th volume of Criminal Law Judgments 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 Judgments will make some adjustments. In terms of content, Criminal Law Judgments will adhere to its style of being close to judicial practice and will involve more judicial practitioners 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 Judgments will undergo a transformation and become more attractive. An important mission of Criminal Law Judgments 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 legal studies, as a branch of legal interpretation, focused primarily on linguistic interpretation. 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, ancient Chinese discovery methodologies were also centered around the interpretation of language (text). The Chinese people have a sensitivity to language, and the understanding of legal provisions is mainly achieved through language to grasp the subtle meanings of the laws. Recently, I read Wang Mingde's book 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 of them 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. Additionally, methods like cross-referencing are also extremely important for understanding legal provisions. As Wang Mingde said: "The meaning of laws is precise and rigorous, making it difficult to add redundant explanations. Therefore, the meaning and intent are often reflected in 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 stated: "The eight characters 'yi, zhun, jie, ge, qi, ji, ji, ru' are used as annotations at the beginning of the laws, labeled as the meaning of the eight characters, and are traditionally referred to as the law mother. These eight characters are known as the method of reading laws. Wang Mingde quoted Su Zizhan, a Song Dynasty scholar, as saying: 'One must first understand the meaning of the eight characters and then integrate and connect them before discussing the method of reading laws.'" In addition to the law mother, there is also the law eye, which corresponds to the law mother. The law eye refers to examples, miscellaneous, dan, bing, yi, cong, cong zhong lun, lei jian, ting jian, de jian, zui tong, tong zui, bing zang lun, she ban kei zui, zuo zang shu zui, zuo zang lun, liu zang tu, shou hui, etc. These are all key terms in the law and are crucial for understanding legal provisions. Wang Mingde elaborated on examples: "An example is like the sun and moon shining in the sky, making it clear and obvious 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 millions of people respect it. One day it is implemented, and it gradually becomes a custom and practice. Therefore, it is called an example." Here, the example 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 examples. Among the above law eyes, some still guide our practice today. For example, bing zang lun zui, Wang Mingde said: "Bing zang lun zui refers to combining the stolen property into one, determining the severity of the crime based on the severity of the property, and each person is sentenced according to the crime they should receive for the property. Therefore, it is called bing zang lun zui." This shows that bing zang lun zui is the principle of handling property crimes (equivalent to modern criminal law property crimes) 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 today. For example, de jian, Wang Mingde said: "De jian refers to when there is no legal reduction, but based on empathy and reasoning, it can be reduced. De means that because it cannot be reduced, it is specially reduced. Therefore, it is called de jian." Here, de jian refers to extralegal reduction, which is equivalent to what we now call discretionary reduction. In modern Chinese criminal law theory, reduction is divided into mandatory reduction and discretionary reduction, both of which are legal reductions: mandatory reduction means that the reduction must be applied, and discretionary reduction means that the reduction can be applied. This shows that the de jian in modern criminal law is different from ancient criminal law. Another example is the character "dan," which is also frequently used in modern criminal law and is called the "but clause," which is divided into turning but clauses and exception but clauses. It is generally used in the original sense of the character "dan." However, the character "dan" in ancient criminal law was different. Wang Mingde said: "Dan means light. It is not necessary to delve deeply into it; just a slight involvement is enough. Like the color dyeing an object, it does not need to be deeply dyed and soaked to be clear and distinct; just a slight touch of its difference is enough, and the original appearance is lost, and it no longer retains its original color. Therefore, it is called dan. The law places great emphasis on using the character 'dan' to make it strict. This is completely different from the use of virtual meanings in the text as a turning point. For example, in the article on plotting rebellion and plotting major rebellion, it is stated: 'For all those who plot rebellion or plot major rebellion, but those who participate in the conspiracy are not distinguished as leaders or followers, shall be executed in a slow and painful manner.' This article uses the meaning of the character 'dan' to refer to both those who have acted and those who have not acted. After all, all laws are divided into light and heavy based on whether they have acted or not. This does not distinguish between those who have acted or not, but if they were present during the conspiracy, they shall be 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 legal studies, which reveals that ancient Chinese legal studies had reached a relatively high level of achievement. The essence of ancient Chinese legal studies lies in the textual interpretation and the explanation of the principles of the law 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 legal studies, and I am no exception. Although there are several works on ancient Chinese legal studies in my collection, I have read very little and borrowed even less. It is just to satisfy the "nostalgia for the past," which is very inappropriate. Our current annotations on criminal law provisions are rough, chaotic, and off-topic, far inferior to the precision, coherence, and relevance of ancient legal studies. In this volume, two papers have been published in the "Research on Specific Crimes" section. Wang Li's article "Research on Traffic Accident Crimes—From the Perspective of Traffic Accident Responsibility Determination" 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 serves as the prerequisite for constituting a traffic accident crime. In this case, whether the traffic accident behavior constitutes a crime depends entirely on the determination of traffic accident responsibility. This judicial 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 determination 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 the Peking University Law School, and her master's thesis was supervised by me. I think her paper 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 "Application of Criminal Law" section, three papers have been published. Li Rong's article "On the Criminal Responsibility of the Primary Member of a Criminal Group" involves the scope of criminal responsibility of the primary member. This issue was not considered a problem in criminal law theory in the past. According to the principle of the unity of subjective and objective, the primary member corresponds to the crimes within the scope of their organizational intent and bears criminal responsibility. The legislator also believes that according to the provisions of Article 26, Paragraph 3 of the Criminal Law, the primary members who organize and lead criminal groups shall be punished according to all the crimes committed by the group, that is, the primary members shall bear criminal responsibility for all the criminal activities of the criminal groups they organize and lead. However, in subsequent judicial practice, doubts have arisen about this, especially in the identification of crimes involving criminal organizations with the characteristics of black societies. How to define the scope of criminal responsibility of the primary members of these criminal organizations has been a point of controversy in judicial practice and criminal law theory. I once heard of a case in a certain place where the public prosecution agency accused the primary member of a criminal organization with the characteristics of a black society of instructing its members to kill others. The defense attorney claimed that the evidence was insufficient, and the court accepted the defense attorney's argument but believed that the primary member should bear criminal responsibility for all the crimes of the criminal organization with the characteristics of a black society. Therefore, even without instructing, they should bear criminal responsibility. In cases where the primary member did not instruct the killing and did not have the intention of killing, it was deemed that they constituted 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, and I think it 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" discusses 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" discusses the issue of the application of capital punishment from the perspective of a judgment on an intentional injury case. Professor Cui Min is an elder 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 is discussing it for the fourth time, showing his deep commitment. The case discussed in this article, I have also participated in expert discussions. Intentionally causing the death of one person while being sentenced to immediate execution for death by three people, and one person to suspended execution for death, 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 regarding this case, Professor Cui Min once discussed it at the symposium of special consultants of the Supreme People's Court, in the presence of President Xiao Yang of the Supreme People's People's Court, calling it not an issue of an individual case but a capital punishment policy issue. Young scholars often cite Western scholars' materials when arguing for the abolition or limitation of capital punishment, but this article cites the discussions of Marx, Engels, and Mao Zedong on "less killing," although familiar, still feels a sense of estrangement. Dai Youju'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 "Application of Criminal Procedure Law" section, three papers have been published. Mo Hongxian and Wang Mingxing's article "Classification and Standards of Criminal Cases" discusses the issue of the classification of criminal cases, which is also what we usually call the cause of action. 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 Duplicate Prosecution in Our Country's Criminal Procedure" conducts an in-depth study of the issue of duplicate prosecution in criminal procedure, especially the comparison and discussion of the double jeopardy 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 a criminal justice standard by the international community, as well as 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 heartbreaking. Zhang Huifeng's article "How Institutions Are Realized—A Study on the Implementation of Non-Custodial Criminal Coercive Measures" conducts an empirical study on the implementation of non-custodial coercive measures such as summons, surety bonds, and surveillance residence, 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 Version) compiled by the Criminal Court of the Higher People's Court of Shanghai" is published. This material was sent to me by Dr. Huang Xiangqing, the president of the First Criminal Tribunal of the Higher People's Court of Shanghai. The First and Second Criminal Tribunals of the Higher People's Court of Shanghai compiled it to summarize the experience of criminal trial in a timely manner and improve the theoretical articles in this volume, which are a collection of criminal law case studies, with the purpose of reflecting new issues in the field of criminal justice.