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The Existing Basis and Realizing Methods of the Criminal Interpretation

Author: GuLe
Tutor: LiJie
School: Jilin University
Course: Criminal Law
Keywords: Criminal interpretation Hermeneutics existence of interpretation realization of interpretation criminal Hermeneutics
CLC: D914
Type: PhD thesis
Year: 2008
Downloads: 588
Quote: 0
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Abstract


In the developing history of the study in philosophy of hermeneutics, it is not only defined as methodology of human sciences, but also once as the ontology for the human life and the world. While the Chinese tradition law explanation theory is rigid in the discussion of methodology stratification. And regard the origins of philosophy of hermeneutics as the epistemology of humanities social sciences speaking of its discipline value and the discipline idea. But the hermeneutics, as the epistemology of human sciences, takes the cognitive style as its object, and studies general process and rules of the development of explanation.Historically the study of explanation of the philosophy of hermeneutics and the concrete hermeneutics is mainly concerned on existence and realization of the explanation, the traditional hermeneutics study is rigid in“how realizes explanation”while the philosophy of hermeneutics aimed“how possibly explains”as its theory idea. And, Chinese legal hermeneutics has grasped the way of methodology tradition. However, as a result of the difference of theory stratification and the different point of views of the philosophy of hermeneutics and the concrete hermeneutics, there are different theoretical objective point in discussing the realization and existence of criminal hermeneutics. This article mainly discusses the existences and the realization of the criminal hermeneutics under the theory of epistemology. It focuses on the main body and the object of the criminal law explanation, and the basic conditions that can make the criminal law explanation into the possible; Taking the criminal law explanation’s function and the social demand as the theory angle of view, it explains the essential existence basis of the criminal law hermeneutics; Taking the destination of criminal law explanation as the theory objective point, it proves the premise of criminal law explanation; And in the criminal law explanation limit and under the method proposition, it explains realization of the explanation of criminal law.First of all, the ontological condition that makes the criminal explanation possible is the existence of the main body and the object of the criminal explanation. And it is also the basis of existence the criminal law explanation. While it is the epistemology object of study, therefore the main body and the object not only have the epistemology connotation, also make criminal law explanation concrete ontology significance. Based on this, studying main body and the object namely has realized the development from the epistemology sight to the ontology sight. The object refers to“the meaningful form”of independent significance, taking the independent significance and“the meaningful form”as its essential attribute, and has the ontology significance regarding the explanation, thus distinguishes from having the sole essential attribute - -“the meaningful form”the explanation object, but the criminal law explained that the object regarding the criminal law explained has the ontology significance criminal law article. Explained that the main system distinguishes by its epistemology connotation from“the interpreter”, but any explanation main body all should to exist historically, thus the historicity is main body of the essential attribute of the main body of constitution explanation, but this essential attribute shows in“me”and“the world”,“I”and“he”,“me”and“first in”relations. But China is authorized the criminal law to explain that rationality of basis the main body its extension lies, in: the validity of criminal law explanation responsibility; and moreover manifesting the criminal legal system’s unification.Next, the criminal law hermeneutics should have two aspects,the main body and the its object,according to its existence basis .Regarding the discussion of its function and the attribute, it is focused in the criminal law explained itself annotates existence of basis the criminal law explanation, but to reply“why needs to explain”, we need take the social demand as the point of view to revelation criminal law explanation’s existence basis. Here, regarding its basic attribute theory, it promulgates the crime of criminal law to decide the principle regarding to take the existence way, criminal law of explanation the psychological restructuring way, the legislative way, then this article namely cognition of attribute take the criminal law explanation as the theory beginning, take China present "Criminal law" and the judicial practice as the basis, annotates the crime criminal law to decide under the principle existence of basis the criminal law explanation.Thirdly, the destination of criminal law explanation should be premise of the criminal law explanation. But this article interprets that the destination is not the link of the practice of the criminal law and the explanation of it. The explanation takes individual understanding as a foundation, also takes achieving common understanding as its idea, thus the goal namely should lie in unity of the criminal law rule, the criminal law legislation explanation and the judicial interpretation take the criminal law rule the macroscopic unification and the spatial unification as its idea, the criminal law explanation practice takes to realize the criminal law rule the microscopic unification and the time unification as its goal, but the criminal law scientific theory explained that namely is for the purpose of seeking“the hegemony”the status in the theorists.Fourthly, the principle of a legally prescribed punishment for a specified crime in the criminal law explanation set the limit request for the criminal law explanation, therefore the criminal law explanation namely becomes the discussion crime criminal law to decide the theory proposition which under the principle the criminal law explanation realizes cannot be dodged. The crime criminal law decided the principle its explanation study idea namely to lie, had stipulated goal of the criminal law explanation, has defined the criminal law explanation limit, however the criminal law explained limit this proposition had the strict rationale, namely cognition of attribute and the tradition the explanation“tallied say”the truth view, but looked over the explanation study development process, explained that did not have the constant attribute, moreover in the philosophy explanation study, the positivism truth view is substituted by the rationalism truth view,“the truth”obtained has annotated, thus eliminated the thought and the existence identical this tradition truth view essential feature. Therefore, the criminal law explained that limit its proposition itself namely shows its theory limitation, but this limitation should be the crime criminal law decides the principle to explain theory of limitation domain manifestation in the criminal law. But the crime criminal law decides principle its own value to be puzzled, as well as its takes to the criminal law explanation truthful to be puzzled, then takes to limit of the criminal law explanation to be puzzled inevitably by the theory. Therefore, inquired about that in the criminal law explained the domain implementation crime criminal law decides the principle the theory mentality, was still has heavy responsibilities.Fifthly, the criminal law explained that the theory has the methodology significance, but discusses the method which the criminal law explained to be regarding“how to realize explains”the reply. Should say that the law of the land explained the theory development is following regarding the law explanation method research, however, in the cut-off law explained that the method its rationale contacts under this premise with logic to explain the method regarding the law to inquire into, the Chinese criminal law explained method theory’s prosperous has not taken to China magnificently the criminal law explanation theory by. This article is in the moral science epistemology this rationale discusses existence of the criminal law explanation in the explanation study with to realize, thus pays attention the criminal law explanation method, should be takes the cognitive style the criminal law explanation method, namely is for the purpose of achieving the criminal law text its language and writing own implication this explanation goal explanation method. The method which explained as cognitive style’s criminal law mainly includes, criminal law meaning explanation method and criminal law system explanation method.Existence and realization of the explanation is the core of the theory, while this article discusses it is for the purpose of promoting the Chinese criminal law explanation study construction and the development. It belongs to the generalized epistemology that the criminal law explanation study should be take cognitive style the as its object of study, to studying the general process and the rule of the development of human science explanation.

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