| There does not exist a debate between classical school and new school in Chinese criminal jurisprudence. However, there is a debate between the formal and substantive interpretation of criminal law, which is different from the formal and substantive interpretation debate in German or Japanese criminal law. The substantive interpretation in China is concerned with all requirements for the constitution of a crime, while it is only concerned with Tatbestand in Germany and Japan. The substantive interpretation advocated by Chinese scholars refers to the interpretation of criminal law, while in Germany and Japan, it refers to the Tatbestand, no more than the punishment regulations. At last, in German and Japanese criminal law, the theory for formal constitution of a crime and formal interpretation comes first, and then the substantive ones, while Chinese criminal law is on the contrary.Many views of the substantive interpretation are questionable. They believe that formal interpretation group in our criminal law theory holds absolute dominance, but the formal interpretation is still in a weak position. They hold that the formal interpretation ignores the substantive justice, but the essential differences between the two schools lie in the ways to discuss the substantive standard of judgment, such as the constitutive mode of crime, the ranking of formal judgment and value judgment, and the principles of interpretation. They think that the substantive interpretation makes use of the substantive side of the principle of Legally Prescribed Punishment for a Specified Crime to take restrictive explanation, but their interpretation tends to criminalization but not decriminalization. They argue that the basic defect of formal interpretation is the evitable consequence of “unjust law is still law”, but the formal interpretation is not the resource of the rule by evil law.The substantive interpretation, intrinsically consistent with the materialism of Chinese traditional culture, is yet the leading school in China. Based on our cultural environment, Chinese scholars can not abandon the material interpretation, but according to the critical function of the social theory and the awareness of school formation, the formal interpretation should be promoted. |
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