有利被告的類推解釋論.pdf

1、 1Abstract Although the criminal law of the People's Republic of China(1997) abolished the system of analogy, the discussion on the analogy interpretation favorable to the defendant is still of great significance. Th

2、e current situation of China's criminal law circles is: the viewpoint of allowing analogy interpretation favorable to the defendant holds the superiority in the criminal theorists' realm, but the judicial practic

3、al realm is actually not willing to admit this viewpoint, still regardes it as taboo. Writing this article is to change the error view, impel the criminal judicial world to carry on the analogy interpretation favorable t

4、o the defendant, so as to play its due performance. In view of the fact that concepts' use related to “analogy“ is not unified and full of confusion, the first part of this article differentiates and analyzes the cor

5、relative concepts, just as the system of analogy, analogy application, analogy interpretation, analogical reasoning and ways of thinking by analogy, and thus clarifies the real meaning of the analogy interpretation which

6、 is a legal creation to a great extent. The second part inspects the attitudes of the main representatives of civil law countries and common law countries, and then knows the viewpoint of allowing analogy interpretation

7、favorable to the defendant is a strong advocate in many countries including China,which is approved of by many criminal scholars. The third part demonstrates the valid foundation of the analogy interpretation favorable t

8、o the defendant from seven aspects, and proves it is accordant with the principle of legality, social security function of criminal law, the modesty and restraint of criminal law, and the criminal policy of combining len

9、iency with rigidity, and it also conforms to the development trend of interpretation of criminal law which is from Rulism to Humanilism. The fourth part of the article discusses the operation mechanism and application sc

10、ope of the analogy interpretation in favor of the defendant, and thoughts its operation mechanism includes three closely connected links: the confirmation of the criminal law crack, the existence of the similar criminal

11、law article which can be cited, and the similarity's comparison between the case type and the criminal rule type. As for the application scope, the analogy interpretation favorable to the defendant can be applied to

12、all criminal cases, and it is irreplaceable. The fifth part studies the reasonable control on the analogy interpretation favorable to the defendant from substantial and procedural aspects. In addition to the general requ