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Mai Mingkai's press: Mai Reading has shared many lectures by Mr. Zhang Mingkai (such as: Zhang Mingkai: Don't blindly follow public opinion, and don't take the definition in the textbook as eternal truth, Zhang Mingkai: Don't look horizontally, but vertically, etc.), this time I will share with you the "eight don'ts" of Mr. Zhang Mingkai's legal research methods, from the lecture notes summarized by the official account "The Beauty of Red and Black", thank you for sharing.
Author=Zhang MingkaiSource=WeChat public account | The original source of Peking University Legal Information Network = WeChat public account |
Practical wisdom cannot be learned or taught
It is up to you to train repeatedly
Mediocre knowledge and information occupy people's minds and interests.
Goethe did an experiment and did not watch the news for half a year, and compared with the previous days of watching the news, there was nothing to lose. You don't want to pay attention to celebrity anecdotes either. Feuerbach said: Man is what he eats. Indeed, whether a person reads and what he reads can judge his spiritual character.
Jurisprudence, especially departmental jurisprudence, is the application of universal norms to specific cases, which is a kind of practical wisdom.
Aristotle and Kant once said that practical wisdom cannot be learned or taught, but must be trained repeatedly. From this point of view, there may be some truth to the statement that "the professor is dead".
Rawls divides justice into utilitarian justice and intuitive justice, which can be in conflict.
Intuition is important for studying law. Intuition is prediction, we always intuitively think that a specific case may be guilty of a crime, and then look for and explain the corresponding legal provisions, and at the same time abstract the specific case facts into typological case facts.
One of the main purposes of studying law at Tsinghua University is to develop good intuition. The path to good intuition is: read more, observe more, and train more.
01 Don't follow the theory of strength
We can't always follow strong theories, don't always follow general theories, and don't always follow the views of the majority. There is no point in a point that cannot be criticized in any way.
If a strong theory is always strong, it is impossible for a theory to move forward, and only when a theory is criticized will people reflect on the theory. In the development of a discipline and theory, someone must start with the weak, overturn the previous strong theory, and make the weak theory become a strong theory.
Just like rowing, all the people sit on one side and row, and the boat cannot move forward. On such occasions, the person who sits on the other side rowing, his contribution must be enormous. Some people say that all of us who sit in the middle of the boat means to take a compromise, but if that's the case, there will be no one rowing.
At first, Hirano Ryuichi strongly agreed with Takigawa's academic views, but later found that there was only one voice in the national view of criminal law, so Professor Hirano began to turn to the teleological behavior theory, but when others followed suit and criticized Takikawa's viewpoint, Hirano Ryuichi turned to the consequential avalue theory. Professor Hirano actually wanted to turn the theory of weakness into a theory of strength, and because of this, Japanese criminal law developed rapidly after the war.
02Don't cling to previous understandings
(1) Jurisprudence is a judgment of value
More than two interpretations can be given to any one article of the Penal Code.
e.g.: Article 14 of the Criminal Code: Knowing that one's actions are likely to have a socially harmful result, and hoping or allowing such a result to occur...... What is the content of knowledge here? Does it mean that the perpetrator clearly knows that the result of his act is harmful to society? Or does it mean that the actor clearly knows that the result of his act will have consequences, and the judge believes that such a result is harmful to society? If the actor believes that the result of his act is not harmful to society, does his act really not constitute a crime? Since jurisprudence is a kind of value judgment, when a person interprets the law, summarizes the facts of a case, and draws conclusions, it is all related to his own experience, and so on.
EG: Before the introduction of the Criminal Law Amendment (VIII) in 2011, some students wrote essays to study the characterization of the act of organizing others to sell human organs. He began by arguing that even with the consent of the donor, the promise of harm to the donor is invalid when the doctor removes the patient's organ. That being the case, it should be concluded that the act of organizing others to sell human organs constitutes the crime of intentional injury.
However, the student did not come to this conclusion because he believed that the doctor would be guilty of intentional injury and that it would be unfair to the doctor. The student then argued that the act of organizing others to sell human organs constituted the crime of illegal business operation. The teacher asked: If the doctor knows that the organ donor is illegally organized by them, does the doctor constitute an accomplice to the crime of illegal business? The student replied that no, saying that if it did, the risk to the doctor would be too great. The teacher asked, "Your parents are doctors, right?" The student replied, "How do you know?" The teacher said that the whole world knows.
(2) Antecedent understanding (antecedent) has a dual character
Interpretation is inseparable from pre-understanding, and the interpretation of the law begins with pre-understanding. However, the former understanding is again a dangerous enemy. Many people take their first ideas as truth, because they lack the ability to reflect at the earliest time.
EG: Understanding the concepts of theft and snatching. Society is changing too fast, and we need to constantly update our ideas.
The teacher experienced "the trouble of the dinner": the people around me kept picking up the dishes during the meal, which made me very distressed. Now is not the past, there is no problem of food and clothing, the dish will make the guests have no freedom of choice, when the bowl is the dish they don't like to eat, eat or not?
(3) A person's stubbornness hides a low level of cognition
Be critical thinker: Question all opinions and ideas, including reflecting on yourself often. On the other hand, look for the good in the other person, even if you disagree with the viewpoint. You may not agree with his conclusions, but you can learn from his method of reasoning.
Don't always try to push others down and put yourself in that position, standing on the shoulders of giants is the great wisdom.
03Don't mistake logical conclusions
There is nothing accidental in logic, everything outside of logic is accidental.
Teacher experience: A professor drove a car back to his hometown and got a flat tire on the highway. The professor concluded: it is necessary to buy an off-road vehicle. The teacher said, "You don't have to drive, you can take the high-speed train, and you don't even have to go home."
Be wary of misinterpreting your own value judgments into logical conclusions.
EG: In the context of industrialization, there are many productive operations that are useful to society but at the same time dangerous. This gives rise to the new theory of negligence: even if the actor could have foreseen the occurrence of the result, if the rules of conduct were followed, there would be no fault. Some see this as a logical conclusion. Actually, no, because one could have come to another conclusion, and in fact there was also the conclusion that with the development of technology, the danger of the perpetrator increased, and strict liability was required. Neither of these conclusions is a logical conclusion, but a value judgment.
EG: In 1975, Columbia issued a gun ban based on the relationship between crime and gun possession. Firearm-related crimes were more common in 1995. Some people have concluded that it is fortunate that guns are banned, otherwise there would have been more deaths. On this basis, some people believe that the ban on guns is still an increase in the crime rate, and the ban on guns is useless. This is also a value judgment, not a logical conclusion.
EG: There are no death sentences in Germany, France, and the United Kingdom, and about 3.5 people per 100,000 people kill intentionally every year. The United States has the death penalty and life imprisonment, and about 5.5 intentional homicides per 100,000 people per year. Japan has the death penalty, but the punishment is generally light, with about 20% of intentional homicides with suspended sentences, but only one person kills per 100,000 people. The death penalty in China: It was on the rise before 2000 and on the decline after 2000. In 2012, there were only 1.03 homicides per 100,000 people. Conclusion: Fewer death sentences, fewer killings. But this is not a logical conclusion, it is still a value judgment.
04Don't move towards formal (literal) jurisprudence
The interpretation of the criminal law must meet two conditions at the same time: 1. the conclusion does not exceed the possible meaning of the words, and 2) it conforms to the purpose of the law (protection of legal interests). The role of text: hints + limitations. The meaning of many words, the boundaries are not clear.
EG: Is this podium furniture? Is the hanger in the closet furniture, is the clothes hanging on the hanger furniture? It is necessary to have the law in our eyes and the natural law in our minds (the most just, the most reasonable, and the most proper).
(1) Narrowing interpretation
1. The legislative purpose of the crime of selling counterfeit drugs: In the end, it is to protect the health of patients, and only drugs that may indeed infringe on the health of patients can be recognized as counterfeit drugs. If a drug is not approved for import, but it is beneficial to the patient's health, it cannot be recognized as a counterfeit drug. Therefore, it is necessary to explain the drawdown.
2. The legislative purpose of the crime of indiscriminate distribution of forest trees: to protect forest resources. Felling dead trees, even without the approval of the forestry department, should not be criminalized.
3. Possession of audio-visual recordings that promote terrorism: The dictionary says that when there is an idea in the brain, it is also called holding an idea. So, can possession in criminal law be interpreted in this way? I received a similar email, opened it, read it, and deleted it, but I always remembered in my mind, does this constitute a crime of "possession"? Of course it does not.
(2) Expanded interpretation (not analogous interpretation)
Note: Whether it exceeds the possible meaning of a text is not determined by looking up a dictionary. Dictionary meanings are static and contextless, while real life is dynamic and contextual.
Teacher Experience: Interesting Facts About Eating and Washing Dishes Washing dishes: Washing dishes only, excluding chopsticks, plates, and pots. Dictionary: A bowl is a bowl. Meals: Meals only, excluding vegetables. Dictionary: Eating really includes eating vegetables. Let the child wash the dishes, the child only washes the dishes, the child says, washing the dishes is washing the "bowl", the teacher said, the washing of the dishes here is in a broad sense (should be understood as the used tableware, including chopsticks, pots, etc.), after checking the dictionary, it is found that "washing dishes" refers to washing "dishes". So, is this in line with our general social perceptions?
05 Don't study false questions
The path to progress: ask questions, solve problems.
However, there are real and false questions. Fake questions include the following four scenarios:
1. The premise of the question is false. 2. There is a contradiction in the question itself: ATMs are not machines, they are not people, they are robots, are fiancées wives? Unmarried are certainly not wives. Does the abduction and trafficking of genuine intersex persons constitute the crime of abducting and trafficking in women and children? Since there is a female component, it is certainly constituted. 3. The question may be real, but it has no meaning or value. In the three-tier theory, whether intentionality is illegal or an element of responsibility has the significance of discussion. If it is the traditional four-element theory of the mainland, then it is meaningless to study it. 4. Questions that can't be answered in real life.
06 Don't reject foreign theories
The rule of law is inherently Western civilization, and there are many things that law has in common, especially criminal law. In foreign countries, there is a tradition of academics. The accumulation of legal theories in mainland China is not as good as in foreign countries. Therefore, the practice of different countries in dealing with crime can be used as a reference.
EG: Environmental crime. However, we must not go from one extreme to the other, and we must also take into account national conditions.
07Don't believe in the original intent of the legislation (original intent)
The drafter is not the legislator, the rule of law is opposed to the rule of man, and once the law is enacted, it is an independent existence. The same is true for a work of art, the reader can read different meanings, and the work is successful.
Always applying the law according to the so-called legislative intent means that the living live forever under the rule of the dead. And the meaning of the law is acquired in the facts of social life.
When a case has nothing to do with you, you can look at the case neutrally and reach an appropriate conclusion with intuition and a sense of justice. To be neutral, there must be distance, and there is distance to be neutral.
08Don't expect judicial and legislative interpretations
Foreign judicial interpretations refer to the reasoning of judges' judgments, while mainland judicial interpretations refer to the interpretations made by the Supreme People's Court and the Supreme People's Court. Since the 20th century, the legislation of various countries has often provided for very abstract and typological provisions, in order to reach a proper conclusion in the trial of cases.
When you don't expect legislative interpretations, judicial interpretations, or legislative intent, you will have a sense of responsibility and mission in your heart. A sense of mission can compel a person to learn knowledge and interpret the law. However, the mainland's judicial interpretations are too specific, which makes the meaning of the provisions closed and lacks vitality. The understanding of "different judgments in the same case": there are no identical cases, only similar cases.
EG: In both cases, it was the theft of 5,000 yuan from other people's property. However, the object of the theft, the reason for the theft, and the degree of possession of the victim will affect the verdict.
Conclusion: Using our understanding of justice, we explore an unusual path in the study of criminal law.
The article only represents the author's personal views and positions, "Annotated Book of Criminal Law (Third Edition)"
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