| The debate, between the theory of formalistic interpretation and the theory of substantive interpretation in the Chinese academic circle of criminal law, is concerned not with such a dispute between fact and value, but with the question of how to apply value judgment in the interpretation of criminal law. In this debate, for the two concerning parties, there are some confusion in the use of basic concepts, some mistakes in the understanding of the opinions of their opponent and a wide divergence between what they have claimed in the words and what they have actually done in some particular cases. In addition, in the argument of the theory of substantive interpretation, there is still an obvious flaw in its logic. The controversies appear in this debate include the following eight aspects, that is, the relationship between a formalistic judgment and a substantive one in the interpretation of Tatbestand, the question of what is a so-called loophole in the criminal law and how to fill it, the explanation of the principle of legality and the attitude to an expansive interpretation against the defendant, the nature of the criminal norm and the understanding of the function of Tatbestand, the inclination to the theory of subjective interpretation or to that of objective interpretation, the preference for literal interpretation or for teleological interpretation, the status of "hard case” in judicial practice and the importance of legal interpretation, and the attitude to the discretion of the interpreters. Such controversies derive from the conflicting ideas as to the basic task of rule of law in the criminal field of China. In its nature, such a debate in China is greatly different from the one in the criminal law theory of Germany and Japan. |
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