| As a judicial instrument to fill loopholes up, analogical interpretation takes different forms in the criminal law and the criminal procedure law and carries different legal implications. In the criminal law, the principle of legality generally denies the application of analogical interpretation, especially the analogy between similar legal provisions. However, absolute prohibition of analogical interpretation in the criminal law is undesirable. On the one hand, it is difficult to define the boundary between analogical interpretation and extensive interpretation, while the latter is allowed in the criminal law. On the other hand, the criminal law also allows the analogical interpretation in favor of the defendant where facts are proved similar. In contrast, the principle of legality imposes no general prohibition against analogical interpretation in the criminal procedure. Given that the power of the state and civil rights are originated from different sources, the principle of legality prohibits analogical interpretation only when such interpretation expands the power of the state, and does not prohibit its application to protect civil rights. However, in the context of Chinese criminal procedure, because the principle of legal reservation is not established, the power of the state often takes the form of analogical interpretation which seriously breaches the legal rights and interests of the parties. In fact, the cases are rare where analogical interpretation is applied in the criminal procedure to protect the rights of the parties. Further research on the analogical interpretation in the criminal procedure should be strengthened, so as to established the principle of legal reservation, set up the judicial review system, prohibit the analogical interpretation that expands the power of the state, and pave the way for the analogical interpretation to safeguard litigants'rights and interests. |
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