1. On the View-points of the Two Interpretation Theories
The difference between interpretation positions of form and substance originated from the different construction of crime systems in German and Japanese criminal law science. Following that, the controversy between the formal and substantive views of criminal law has become the most important school controversy in China. Some commentators summarized the disputes between the two sides into 5 aspects: formal rationality and substantive rationality, formal legal state and substantive legal state, formal crime concept and substantive crime concept, formal crime system and substantive crime system, formal interpretation theory and substantive interpretation theory, so embarked on a magnificent academic system from philosophy of law, basic principles of criminal law, criminal theory and methodology and other aspects. [1] The opposition of the formal interpretation theory and substantive interpretation — as an important manifestation of the school dispute in dogmatics, has far-reaching significance in the legal discovery process of criminal justice activities. Although these two theories have many differences, they still have lots of consensus on main positions and methodology in light of their observation of fundamental values of criminal law.
First, both of them comply with the requirements of the principle of legality and think that they can better safeguard it. Second, they both adhere to the unity of formal and substantive judgment in the theory of crime, and establish crimes on the basis of both formal and substantive judgment. Third, they both adopt the position of substantialism in the aspect of exculpation, and exclude those behaviors that satisfy the formal text but do not have the necessity of punishment from the scope of conviction. Fourth, they both stick to the final boundary of criminal law interpretation and oppose analogical interpretation, so take the possible semantics of norms as the boundary of criminal law interpretation.
At the same time, their differences mainly include: Firstly, they have different understanding of the principle of legality. The theory of formal interpretation mainly emphasizes the formal aspect of the principle of legality, and holds that even if the substantive rationality is sacrificed, the formal rationality must be adhered to. However, the theory of substantive interpretation adheres to place more emphasis on the substantive side of the principle to achieve goal of “Lex injusta non est lex.” Secondly, the positions of substantive judgment in their crime systems are different. According to the theory of formal interpretation, we should try our best to make objective and formal interpretation of the constituent elements. Even if it needs to be substantiated, it can only be the substantiation of the fact rather than the substantiation of the value, and the judgment of the substantial illegality should be made in the illegality class. On the contrary, the theory of substantial interpretation holds that the interpretation of the constituent elements must adhere to the principle of legality, so as to realize the unity of formal judgment and substantial judgment; the illegality class does not actively carry out the illegality judgment, but only judges whether there are illegality obstructions. Thirdly, in terms of incrimination, there are different positions on expanding interpretation. The theory of formal interpretation opposes the criminalization of behaviors which are essentially worthy of punishment but lack of formal provisions. The theory of substantial interpretation holds that when a certain act is not in the core meaning of criminal law, but has the necessity and rationality of punishment, we should expand the interpretation of criminal law on the premise of conforming to the principle of legality. Fourthly, the ideas of criminal law interpretation are different. The theory of formal interpretation holds that formal judgment should be made first, and substantive judgment comes later. Nevertheless, for the theory of substantial interpretation, the two are integrated into one step. It holds that the allowable scope of interpretation is directly proportional to the necessity of punishment, and inversely proportional to the distance from the core meaning, so as to make the interpretation conform to the literal meaning and purpose requirements of legal norms at the same time. [2] [3]
From the perspective of functionalism, dogmatics and criminal policy are inseparable, and the formulation and application of criminal law norms always correspond to the specific needs of social governance. [4] In contrast, substantive interpretation takes into account the purpose of criminal legislation and the protection of legal interests when interpreting norms, which directly and comprehensively reflects the social function of criminal norms and has certain advantages in practical application. Therefore, the basic point of this paper is: The use of substantive interpretation is the preferred choice based on the actual needs under the existing conditions of criminal law practice in China.
2. The T heory of S ubstantial E xplanation and the O peration of the P rinciple of L egality
As a product of modern democratic thought, the principle of the principle of legality has been developed for hundreds of years, and has gradually produced its substantial side on the basis of its formal side, and put forward the requirements for the clarity and legitimacy of the criminal law norms. Based on the need of limiting the national penalty power and protecting the basic human rights, the core of the formal side is still the bottom line, which is «no crime without explicit provisions of law, no punishment without explicit provisions of law». However, strictly abiding by the formal aspect of the principle of legality does not mean that the criminal law can only be interpreted formally. First, from a static point of view, the written criminal law has its natural limitations. Normative legal documents are always difficult to avoid such drawbacks as vague language, unintended words, concurrence of norms or lack of content. “No matter how rational and wise the legislators are, they cannot fully understand all the problems to be solved by legislation like the Almighty God, and they cannot make the expression of law perfect and logical based on the certainty of language and the completeness of formal logic.” [5] This leads to the exploration of the scope of crime and punishment only through the text meaning of written norms is very hard to be comprehensive and accurate. Secondly, from a dynamic point of view, the textual criminal law norms cannot directly connect with the facts of the case. In judicial practice, the process of finding the corresponding norms according to the facts of the case is not only a logical implication, but also an equal process based on analogy. [6] When the eyes of the applicators constantly go back and forth between the norms and cases, the process of comparing and connecting the two requires the necessary interpretation of the criminal law norms; and the subjectivity and complexity of the interpretation will cause the uncertainty of the interpretation of the norms, thus impacting the formal side of the principle of legality. Therefore, the principle of legality has to be supplemented and corrected by legal interpretation in operation, and substantive judgment plays an important role in this process.
(1) Substantive J udgment is a N ecessary Step in the I nterpretation of C riminal L aw N orms
“Legal interpretation is the premise of law enforcement. Only through the interpreter's interpretation can abstract legal provisions become practical and effective, and can they be connected with the complex and changeable real life.” [7] As a bridge and link between criminal legislation and judicial activities, the interpretation of criminal law norms is a necessary step in all criminal law application activities. In other words, the process of finding the law and applying the law according to the facts of the case is not only the process of examining the reality from the perspective of the normativism, but also the process of finding the appropriate norm according to the needs of the ontology. In order to evaluate the facts of the case according to the content of the norms, the subject of law application has to process and interpret the norms subjectively. Therefore, every individual who tries to understand the real world by criminal law norms, whether they are judges, parties or law scholars, has formed a reasonable conclusion of interpretation in their mind before applying the law. Fundamentally, this is because language itself is only a symbol of expression. When someone tries to understands language, he or she is subject to specific context and situation, and has to add personal processing and creation to the text. Therefore, the annotation of norms is a kind of activity with strong subjectivity and initiative.
However, the formal interpretation theorists insist on the semantic interpretation according to the legal norms, emphasize the difference between the meaning of legal terms and daily terms, and think that there should be a “formal judgment” step completely divorced from the substantive elements in determining the interpretation conclusion. [2] However, its defect is that it does not specify the standard of formal judgment- is it the explanation of the authority, the interpretation of linguistics, or the general theory of the academic and practical circles of criminal law? In the process of exploring the meaning of criminal law norms, the interpretation of the authority is often in a state of absence, and the interpretation based on linguistics may deviate from the professional meaning of legal terms. However, once the conclusion of «formal interpretation» is amended with the specific meaning in academic theories, it actually returns to the idea of substantive judgment, because the so-called specific meaning only adds the element of “substantive” to basic semantics. Therefore, some scholars have pointed out that “even those who strongly oppose the theory of substantial interpretation are (unconsciously) carrying out substantial interpretation and even analogical interpretation;” [3] this just reflects the embarrassment of the theory of formal interpretation.
On the other hand, the substantive interpretation theory takes the necessity of punishment as the objective standard of substantive judgment. Whether a certain harmful act has the necessity of punishment depends on two aspects: one is the degree of illegality of the act, which is the analysis conclusion of the harmful act from the perspective of infringement of legal interests or violation of norms; the other is the attitude of criminal policy towards the relevant act, which depends on the scope of application of crime and punishment designated by the competent authorities. The former reflects the negative evaluation of criminal law dogmatics on harmful acts, and indicates the value standard of norms; “because the written criminal law is the literal expression of justice, we must always interpret the legal text with the conscience of pursuing justice and legal truth.” [3] The latter is closely related to the criminal policy of a country. In a specific historical period and legal environment, criminal policy is generally in a relatively stable state; as a result, it is an important step for legal professional groups to reach consensus on the meaning of norms in light of existing legislative documents and judicial precedents, to carry out theoretical interpretation according to the requirements of criminal policy.
(2) The Application of S ubstantive J udgment S hould not B e L imited to the Level of Incrimination
According to the theory of formal interpretation, the formal aspect of the principle of legality focuses on the restriction of judicial power, while the substantive aspect focuses on the restriction of legislative power. There is no hierarchy relationship between the two, and the substantive aspect should not be superior to the formal aspect. Yet the theory of formal interpretation accepts the substantive judgment at the aspect of exculpation, and holds that the behavior that satisfies the formal meaning of the legal text but does not have the necessity of punishment should be excluded from the coverage of constitutive elements. In other words, on the one hand, the formal interpretation theory refuses to examine the formal aspect from the substantive aspect of the principle of legality; on the other hand, it adopts a different attitude at the level of exculpation, but no one can make clear the logical basis of this one-sided negation.
Even at the level of incrimination, substantive judgment is necessary. The normative terms of criminal law are often in a vague and gradual state, coupled with the common existence of normative elements, blank counts and sweeping provisions in the real legislation, it is difficult to determine the dividing line between crime and non-crime by relying solely on formal judgment. As for the basic point of formal explanation theory-“it is the necessary price to implement the principle of legality to insist on the position of formal rationality and not to punish the behavior that is not explicitly stipulated in the law but is essentially worthy of punishment,” [2] the theory of substantial interpretation will never object to that. However, the substantive evaluation is also indispensable in determining whether harmful acts need to be convicted, in order to reveal the true colors of the legal norms under the guidance of the objective rationality. In other words, the discovery of the essence of norms is not a departure from norms, but a necessary process to find and apply them. From the philosophical point of view, form and essence are not only opposite to each other, but also can promote and supplement each other; advocating substantive rationality does not mean negating formal rationality, the key point lies in how to deal with the relationship between them. Therefore, the theory of substantial interpretation insists on comprehensive measurement and evaluation from the two aspects, and takes into account the formal and substantive requirements of the principle of legality at the same time.
3. The T heory of S ubstantial I nterpretation and the C urrent S ituation of C riminal Justice in China
(1) Substantive I nterpretation is M ore in L ine with the L egislative R eality
From the perspective of actual law, legal interpretation can amend or make up for the deficiencies of statutes, so as to solve the contradiction between the stability of law and the dynamic changes of social life. The goal of formal interpretation is to explore the original legislative intention of legislators at that time, so it tends to be subjective interpretation. Although it has the positive significance of limiting the power of national penalty and avoiding arbitrary punishment, it also has the shortcomings of rigidity and dogmatism. On the contrary, the substantive interpretation stands on the position of objective interpretation, trying to find the aims and value of norms through their objective meanings, and can adjust their conclusions according to the changes of social reality, so as to enhance the adaptability and flexibility of criminal law provisions. In other words, the substantive interpretation can make the meaning of criminal norms contingent upon the changes of criminal policy, which is particularly important under the realistic conditions of China's legislation.
First of all, China's criminal law has been in frequent revision and improvement. After the reform and opening up, China has entered the period of economic and social transformation and the original legal relations have undergone profound changes. At the same time, due to the rapid development of science and technology, all kinds of new things constantly emerged, and the new legal relations also needed a variety of special regulatory systems. In this case, due to the stability and hysteresis of legislation, the amendment of criminal law has been in a state of being carried by the realistic needs. Therefore, since the criminal law came into effect in 1979, China has formulated dozens of separate criminal laws; after the comprehensive revision of the criminal code in 1997, ten amendments to the criminal law have been issued. In such a period of drastic changes in criminal law norms, it is too idealistic to overemphasize the supremacy of legislation, advocate semantic interpretation, and expect to limit the scope of penalty power only by the formal meaning of law provisions. Regardless of whether the legislative technology is clever or not and whether the legislative language is accurate or not, the scope of punishment and the degree of sentencing of various crimes are all affected by the criminal policy in terms of practice. In this process, the standards of illegality needed for conviction and sentencing have to be adjusted adaptively.
Secondly, criminal norms often use abstract and general language to express the constitution of crime, which limits the materials that the formal interpretation can obtain. On the one hand, due to the existence of a large number of simple counts, some crimes cannot be classified according to the literal meaning of the normative provisions. For example, in the crime of Imparting Criminal Methods in article 295, the specific content of criminal methods must be determined according to the requirements of criminal policy. On the other hand, even for the narrative crimes, due to the existence of ‘dual regulation mode’ in China's criminal justice, to understand the types of criminal acts in the norms also needs to use substantive illegality judgment, which is particularly obvious for various economic and administrative crimes.
Thirdly, the wide application of judicial interpretation requires the applicator to make substantive evaluation of criminal norms. The judicial interpretation plays an important role in China's legal practice. In fact, the standards of crime and punishment for most crimes are stipulated by judicial interpretation, and some courts even pay more attention to judicial interpretation than the criminal law itself. Therefore, in the context of the limited content of criminal law provisions and the strong role of judicial interpretation, it is difficult to question the specific provisions of judicial interpretation by using a few words in criminal law provisions. On the contrary, only from the standpoint of substantive interpretation can we decide whether the content of judicial interpretation is desirable through value judgment, so as to judge whether the meaning of criminal law norms has been expanded or reconstructed, and draw the conclusion whether the judicial organ has carried out ultra vires interpretation.
(2) The “F our -E lement ” Crime Constitution System is more I nclined to S ubstantive E xplanation
From the root point of view, the differences between formal interpretation and substantive interpretation come from the disputes between formal and substantive crime systems, so the key problem lies in how to deal with the relationship between constitutive elements and illegality judgment. Specifically, the former regards constitutive elements as an objective and neutral category, and regards them as simple types of behaviors; the latter makes substantive judgment and relevant evaluation at the stage of constitutive elements, so as to treat them as illegal behaviors types. However, the discussion of both sides is based on the three-tier hierarchic crime system; therefore, for formalists, even if the formal interpretation is adopted in the constitutive elements tier, they can still make substantive judgment in the illegality tier.
However, China still adopts the “four-element” crime constitution system from the former Soviet Union, so it is necessary to make a complete and comprehensive assessment of all the elements of crimes at one time. Since there is no other progressive and three-dimensional judgment tier besides the plane constitution of crime, all the judgment steps, whether in form or in substance, must be completed at one time when the criminal law is applied. Under the domination of this kind of crime system, it is difficult to construct a purely formal normative interpretation step. Therefore, both for the theory of incrimination and exculpation, the formal and substantive interpretation of criminal norms must be organically unified and considered as a whole. That is to say, the semantic interpretation of criminal law norms must be combined with substantive value standards, which is more in line with China's crime system.
4. The T heory of S ubstantial I nterpretation and the R ealization of the F unction of C riminal L aw
The function of criminal law includes two aspects: social protection and human rights protection. The former mainly refers to the protection of individual legal interests, social legal interests and national legal interests through the use of criminal means, so as to complete the maintenance of social order; the latter mainly refers to avoiding the abuse of penalty by limiting the scope of national penalty power, so as to protect citizens' basic freedom and rights. At present, China's reform and opening up has entered the deep-water area, and the social transformation is still in the transition period, so all kinds of crimes are still in a relatively high incidence stage; therefore, the social protection and human rights protection functions of criminal law need to be further strengthened.
(1) Social P rotection in U rgent need of S trengthening
In the past two decades, the number of crimes in China has increased as a whole; among them, the number of criminal cases filed by the police has increased from 3637307 in 2000 to 7174037 in 2015, and remained at about 5 million in the following years. [8] In 2019, crimes against public security and economic order continued to increase. [9] At the same time, the types and means of crime are constantly renovated, and new types of crime are emerging. With the deepening of economic system reforms, sometimes a new reform measure is just introduced, and new economic crimes against it appear accordingly. [10] Meanwhile, with the promotion of scientific and technological innovation, especially for the area of information technology, high-tech crimes represented by cyber-crimes are becoming more and more serious. Therefore, with the change of the objective environment, the subject, tools, means and objects of crime are undergoing profound changes, so that the traditional criminal law is facing many challenges. Therefore, the expansive interpretation of traditional crimes is not only imperative, but also becomes an important means to deal with the crime transforms.
In this context, it is obviously difficult to meet the requirements of criminal policy to overemphasize the return to classicism and limit the power of penalty, and to explore the meaning of criminal law norms only through legislative texts. Due to the irreplaceable role of penalty in crime prevention, the society today is more and more dependent on penalty, and personal legal interests, social legal interests and national legal interests also need strong protection by criminal law. Therefore, the application of penalty should not always shrink back, but should become a public product providing security protection for citizens. In the current criminal law, the number of crimes is still not enough, and the crime network has not yet been fully established. Therefore, it is still an urgent task for the legislature to criminalize illegal acts by adding new crimes, which is also an important topic of the ten criminal law amendments. At the same time, in the case of legislation hysteresis, it is also an effective supplementary means to criminalize some illegal acts by expanding the interpretation of criminal law norms. In fact, the expanded interpretation by the legislature and the judiciary has always played an important role in practice.
A typical example is the dispute between formalists and substantialists about whether “the person in charge and the person directly responsible in the unit should be investigated for criminal responsibility when the criminal law does not prescribe a crime committed by the unit.” [11] In the legislative interpretation in April 2014, the Standing Committee of the National People's Congress made it clear that “if companies, enterprises, institutions, organs, organizations and other units carry out acts against society stipulated in the criminal law, but the specific provisions of the criminal law and other laws do not provide the criminal responsibility of unit, those who organize, plan and carry out such harmful behavior shall be investigated for criminal responsibility.” From this we can see the pursuit of legislators to expand criminal circle by the substantive interpretation of criminal norms.
(2) Human R ights P rotection to be I mproved
The human rights protection function of criminal law is mainly realized by restricting the penalty power of the state, and how to improve the quality of judicial activities and realize fair and reasonable justice is the key to the problem. The focus of the dispute between formal interpretation and substantive interpretation lies in which interpretation can better limit the scope of interpretation and punishment of criminal law.
The theory of formal interpretation does not mean that substantive interpretation is unnecessary. It just thinks that when interpreting criminal law, formal judgment should be made first, and substantive judgment comes later, so as to form a logical hierarchy between the two. At the same time, although the formal interpretation theory opposes the substantive interpretation on the theory of incrimination, it does not oppose the substantive interpretation on the theory of exculpation, and supports the exclusion of those behaviors that satisfies the formal characteristics of the legal text but do not have the necessity of punishment from the constitutive elements through substantive judgment. [2]
On the other hand, the theory of substantial interpretation holds that the interpretation of the constitutive elements must be guided by the protection of legal interests, not just the literal meaning of the articles. Its views on the theory of exculpation are similar to those of the formal interpretation, but different on the theory of incrimination. In other words, when certain behaviors are not in the core meaning of the criminal law but have the necessity and rationality of punishment, the interpretation of relevant criminal articles should be expanded on the premise of conforming to the principle of legality. That is to say, the theory of substantial interpretation agrees with expansive interpretation in the field of incrimination. [3] Therefore, many scholars come to the conclusion that the substantive interpretation tends to expand the scope of punishment.
But this is not necessarily the case. As mentioned above, the difference between the two theories of interpretation mainly lies in whether to judge the essence and value at the tier of constitutive elements. Formal interpreters insist on a formal, neutral and value-free judgment of the constituent elements, while substantive interpreters advance the judgment of substance and value to the tier of constituent elements. In this way, the substantial interpretation theory only makes substantive consideration and measurement earlier than the formal interpretation theory, while the formal interpretation theory has no similar judgment process in the tier of constituent elements. Thus, how does the formal interpretation theory keep the substantial judgment of the constitutive elements in the process of incrimination? How does it know whether a case needs to be incriminated or exonerated as early as the tier of constitutive elements? The only possible answer is that the formal interpretation adopts different modes of criminology according to the needs of incrimination or exculpation; however, the standard of distinguishing incrimination and exculpation can only depend on the final result of judgment according to the whole crime theory. In this strange logic circle of mutual cause and effect, formal interpreters fall into the paradox of methodology.
Therefore, only the substantial interpretation can truly adhere to earlier and more comprehensive substantive judgment in crime theory, which is particularly important for the “four-element” crime constitution system in China. The theory of substantial interpretation adopts a consistent interpretation idea. First, the principle of legality must be conformed to, so all the interpretations should not exceed the possible semantics of norms. Second, for one thing, we should consider the necessity of punishment and infringement of legal interests when interpreting norms; for another, we should consider the distance between the interpretation and core meaning of norms. Finally, through the comprehensive evaluation of the three aspects, a conclusion whether particular behaviors need to be criminalized can be reached. Therefore, the theory of substantial interpretation has excluded for many times when carrying out exculpation, and has realized multiple restrictions on incrimination. Although in different legal norms, it is difficult to reach an agreement on the connotations of the concepts of possible semantics, core semantics and normative semantics, so that sometimes there is a cross between the two interpretations [3], and it may be impossible to finally judge whose punishment scope is larger or smaller. However, compared with the formal interpretation theory, which only puts the interpretation basis on the normative semantics, the substantive interpretation is more reasonable and its conclusion should be more reliable.
5. Conclusion: Contemporary China's R ecall for S ubstantive I nterpretation
At present, China is firmly promoting the construction and improvement of the system of rule of law. However, the reality of China's criminal justice right now is that: the criminal law is gradually amended and supplemented, the “four-element” crime constitution system still occupies a general position in judicial practice, and the theory of social harmfulness still has some influence in theory and practice. In such an environment law practice, the adaptability and vitality of the substantive interpretation naturally become stronger.
Therefore, the discussion of this paper is based on the national conditions of China, which takes the criminal policy into account and tries to integrate the function of criminal law into dogmatics. Everyone must admit that the formal interpretation has its own reasons and values; but once we get out of the closed system of dogmatics and observe criminal law from a more macro perspective, especially in close connection with the practical needs of the rule of law in China, substantive interpretation will become a better choice. After all, criminal law is a part of social science. On the one hand, it has ontological value, but meanwhile, it has to undertake specific tasks and play specific roles in social life. Therefore, the value measurement of criminal law system must be based on ontological value, but it should not be limited to ontological value — the satisfaction of social needs and the realization of social value should also be taken into consideration.
References:
- Liu Yanhong: The Essence of Concept of Criminal Law (second edition), China Renmin University Press 2019, 1–283.
- Chen Xingliang: Re-declaration of Formal Interpretation Theory, China Law Science , 2010, 4, 27–48.
- Zhang Mingkai. Re-advocacy of the Theory of Substantive Interpretation, Chinese Law Science， 2010, 4, 49–69.
- Klaus Roxin: Criminal Policy and Criminal Law System (Second Edition), translated by Cai Guisheng, Renmin University of China Press, 2011, 3–59.
- Liang Genlin: Methodology of Criminal Law , Peking University Press, 2006, 145.
- Kaufman: Philosophy of Law , translated by Liu Xingyi and others, Law Press, 2004，125–145.
- Zhang Zhiming: Analysis of Legal Interpretation Operation , China University of Political Science and Law Press, 1999，4.
- Chinese national statistics: https://data.stats.gov.cn/index, 2020–12–01.
- Chen Su, Tian He: Report on the development of the rule of law in China (2020) , Social Sciences Literature Press, 2020, 72–74.
- Wei Pingxiong, Zhao Baocheng, Wang Shunan: Criminology textbooks (Second Edition), China University of Political Science and Law Press, 2008, 115.
- Chen Xingliang: Criminal Law Towards the Controversy of Schools , Law Science Studies , 2010, 1, 144–148.
