Zhongcheng Qingtai Law Research Institute Held First Reading Conference and Topic Seminar
Published:
2021-04-20
Zhongcheng Qingtai Law Research Institute Held First Reading Conference and Topic Seminar
On the afternoon of July 31, the first reading conference and topic seminar of Zhongcheng Qingtai Law Research Institute was held in the conference room of Zhongcheng Qingtai Jinan Institute. This activity was presided over by Liu Yuhan, vice president of Zhongcheng Qingtai Law Research Institute. About 40 young lawyers from our institute participated in this activity.
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This issue reads the book "Methodology of Law" by Mr. Yang Renshou in Taiwan. Lawyer Cao Pingping first shared the main content and reading experience of the book: this book takes the legal interpretation method as the core, combines civil punishment, theoretical analysis and practical cases, which is of great guiding significance and inspiration to the application of the law; at the same time, Mr. Yang's noble personality, rigorous academic attitude and focus on judicial work are also worthy of common encouragement from legal people.
One person reads, intending to be quiet; two people read, intending to talk; many people read, intending to discuss. After the introduction of the bibliography, everyone published discussions around this book and the good books they had read: lawyer Qin xingda shared his reading thoughts on the book "methodology of law" based on his criminal case handling experience, and put forward his unique understanding from the perspective of legislative theory and interpretation theory. Lawyers Cui Shouxu, Cao Pingping and Liu Yuhan selected three practical cases in the civil and criminal fields, the application of legal interpretation methods in lawyers' cases was discussed in detail. Lawyers Li Heng, Bai Yanchen, Qi Yongzheng and Mao Xiang shared their reading insights and recommend good books respectively.
The research topic sponsored by the Law Research Institute this year is "Research on Difficult Issues of Property Preservation and Enforcement in Civil and Commercial Cases". In this seminar, lawyer Xu Changle first shared some of the topics that have been written, explained the legal issues and practical points related to "change of application executor", and showed the preliminary research results. Everyone discussed and put forward some suggestions for improvement. After that, President Li Heng of the Law Research Institute led everyone to discuss and determine the group research topic and outline, and defined the requirements of work division and time limit node, so as to promote the completion of the research topic on schedule.
This event was also interspersed with mini games and the "Civil Code" knowledge contest. It was an unprecedented knowledge sharing and discussion event with a relaxed and pleasant atmosphere and unique content. In the future, the Law Research Institute will carry out reading and research activities from time to time to encourage the collision of ideas, speak freely, promote the style of reading and research, and promote the continuous growth of young people in the law firm.
Attached: Qin Xingda Lawyer Reading Club's Speech
On Legislation and Interpretation
-Some Thoughts on Reading Yang Renshou's Methodology of Law
The life of law lies in interpretation, and the process of application of law is a process of legal interpretation. It can be said that the importance of legal interpretation cannot be overemphasized. Mr. Yang Renshou spent about 1/3 to introduce legal interpretation in the book "Methodology of Law. But we must understand a set of concepts before we interpret the law, that is, the legislative theory and the interpretation theory.
What are legislative theory and interpretative theory? According to Chen Xingliang's point of view, the thinking of legislative theory is a question of "should" and "should not", while the thinking of interpretative theory is a question of "yes" and "no. The former is the judgment of the legitimacy and rationality of the law, while the latter is the reasoning with the law as the logical starting point. In other words, the legislative theory takes criticizing the existing law as its own duty, and tries to realize the appropriateness of individual cases by changing the legal provisions. Interpretation theory can also be called legal doctrine or judicial theory, it is based on the belief in the current law as the premise, "assuming" the existing law is reasonable, trying to explain the existing law to achieve the appropriateness of the case, "the law is not the object of ridicule" this maxim fully expresses the position of understanding interpretation.
The reason why I want to report to you today on the issue of "Legislative Theory and Interpretation Theory" is mainly based on the following reasons: First, with the formulation of the Civil Code, the next question is how to apply the Civil Code, and the application of the Civil Code It is inseparable from the interpretation of civil law. Only by distinguish between legislative theory and interpretation can civil law be better applied. Second, many people often throw the pot to legislation. In this example, "Tianjin Aunt Zhao's illegal possession of guns", Tianjin's 51-year-old Zhao Chunhua set up a shooting stall on the street to hit balloons. On the evening of October 12, 2016, he was arrested during an inspection by the public security organs. The police seized 9 guns, related gun accessories and plastic bullets from her booth, of which 6 were identified as guns. On December 27, the Hebei District Court of Tianjin sentenced him to 3 years and 6 months in prison for illegal possession of guns. At that time, it caused great social repercussions. I found that many people thought, what kind of law is this? How can a balloon gun be identified as a gun? Here is a confusion of concepts, in fact, this is not a question of legislation, but a question of applicable law, that is, how to interpret "guns. The court is based on the ''Regulations on the Performance Appraisal of Guns and Ammunition Involved in Public Security Organs'' issued by the Ministry of Public Security in 2010. For non-standard guns that cannot fire standard ammunition, when the muzzle specific kinetic energy of the fired projectile is greater than or equal to 1.8 joules/square centimeter, All are recognized as guns. However, whether this interpretation of firearms is reasonable, whether the standard for the identification of firearms is too low and whether the court should adopt the relevant provisions of the Ministry of Public Security, which involves the principle of the unification of legal order and the relativity and independence of criminal law, will not be carried out here. Through this example, we need to understand one thing. Sometimes the "legislative problem" is actually a false proposition, which can be solved through criminal law interpretation.
Another is that I have heard many people say this: "This is what the legislation stipulates. It is not clear, and no one can help it." Is it possible to make the legislation clear? The law is limited and the behavior is unlimited. Every case we come into contact with seems to be similar, but every case is different and the situation is different. If we let the law stipulate every situation, how unimaginable it is. Is it a good thing to make legislation clear? Many people criticize that the criminal law does not stipulate what is a unit crime, and a definition of unit crime should be given. We look at Article 20 of the criminal law: "Joint crime refers to the joint intentional crime of two or more people". This is the provision of the concept of joint crime, but the consequence of this definition is that some actors who have common behavior but do not have common intention can not be punished, which hinders the development of "common behavior" in joint crime, which has led to a lot of criticism. Of course, some scholars have tried to make up for this defect by means of explanation, so they will not start here.
The third reason is in theoretical research. As Professor Chen Xingliang said, in some criminal law works, the context often changes, which brings theoretical confusion. For example, in order to prove that a theoretical point of view is correct, a certain law is often cited as evidence; in order to prove that a certain law is correct, a certain theoretical point of view is often cited as evidence. The flexible jump between theory and law is an attitude that I use. The problem is that in the context of criminal law hermeneutics, the law is always correct and needs to be expounded through theory. In the context of criminal jurisprudence, jurisprudence takes precedence and is the basis for the existence of legal provisions, so that legal provisions can be judged. If these two contexts are misplaced, it can only cause both criminal jurisprudence and criminal law hermeneutics to lose.
In recent years, the hermeneutics of criminal law has been fully developed, especially after the formulation of the criminal law in 1997, the doctrine of criminal law has developed rapidly in our country. Now, without mentioning the doctrine of criminal law, I feel like I have not studied criminal law. The importance of the legal doctrinal approach is, in my view, due to the innate incompleteness, imperfection and ambiguity of legal norms. Any law is abstract and general. When it is applied to individual cases, it is inevitable that there will be situations that the law fails. In this case, the law cannot provide all the rules for the referee, and only jurisprudence can assume this responsibility. We must admit that the law cannot be clear. We must recognize the inherent shortcomings of the law and boldly use explanations to make up for these shortcomings, instead of criticizing the shortcomings of the legislation at will, thus stopping the progress. As teacher Yang Renshou said, "the court shall not refuse to judge without express provisions of the law".
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