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The normative interpretation of the criminal law fiction Terms

Author: MaChunXiao
Tutor: CaiDaoTong
School: Nanjing Normal University
Course: Criminal Law
Keywords: Legal fiction Specification interpretation While based on Possible risks Reasonable limits
CLC: D924
Type: Master's thesis
Year: 2011
Downloads: 57
Quote: 0
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Abstract


Act as media role between facts and norms, which itself only has reality and fiction. Is based on the value of legal fiction is a typical manifestation of this fiction. The legal fiction is based on practical considerations and value aims to seek, by means of legislation will be seen as the basic facts or giving pro forma facts and the basic fact that the same legal effect as a wise and well-intentioned system technology fiction facts. Criminal law as jus cogens, publicity of the principle of legality, the legal fiction that can only be limited at the legislative level; multi-weigh the legal fiction also reflects the values ??into criminal policy and criminal law for the objective laws of the legal phenomenon of rational thinking, In another word, the legal fiction under the criminal law context of the substance of the legislation after the game between the \science and artistry with the legislation in the technology, but also reflects the intrinsic value of the rational, political and utilitarian. Based on the above characteristics, the legal fiction with legal analogy, the interpretation of the law, the legal presumption, pay attention to the provisions of strictly distinguish. There are a large number of pro forma Terms of the criminal law, but academics lack its due attention and systems research. Typical disputes over the terms are mostly concentrated in the distinction between legal fiction and attention to the provisions, because it is directly related to the applicable conditions, thereby affecting Zuiyufeizui strict distinction between this crime and other crimes, it should be on the basis of the tradeoff The identification should be recognized as a legal fiction terms \In addition, based on the legal fiction and penalties natural coincide from Crime and Punishment angle cut system combing our terms of legal fiction undoubtedly has its unique. \effective implementation of the legitimacy basis. On the other hand, the legal fiction also exist, including tion tendencies, Humility and contrary to the Criminal Code, deviate from the criminal the basic position of the rule of law, including the possible risks. Fiction has strictly limited to reasonable limits based on the Criminal Code rational, legal, macro on the legal fiction should Humility and to protect the legal interests and abide by the fundamental of legality; the legal fiction microscopic main qualifications should be national, the creation of a legal fiction permission should be legislative authority, should have considerable resistance between the object of legal fiction, running legal fiction should follow the regulation.

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CLC: > Political, legal > Legal > Chinese law > Criminal law
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