The word "etc." is a common word in Chinese, and it is also a controversial word.
01
In the Xinhua Dictionary, the word "etc." has multiple meanings, and when it is used as an auxiliary word, it is divided into three situations:
One is used after a personal pronoun or noun referring to a person to denote a plural.
Ministers, please resign. - "History of Lian Po Lin Xiang Ru Lie"
Another example: I wait; They; A dry man and so on
The second is to enumerate the tails.
With Fan Xia waiting for the baby Jin Qiang Jixin and the other four people walked with swords and shields. - "History of Xiang Yu Benji"
Another example: the Yangtze River, the Yellow River, heilongjiang, pearl river and other four major rivers
The third is to indicate that the enumeration is not exhausted (can be stacked)
Guan Yu, Zhang Fei, etc. were displeased. - "Romance of the Three Kingdoms, Biography of Zhuge Liang"
Another example: the purchase of pens, paper, etc
02
In laws and regulations, it is often related to the latter two: one is to indicate the tail after the enumeration, that is, "waiting within the wait"; the other is to indicate that the enumeration is not exhausted, that is, "equal outside the wait".
Through the example of the Xinhua Dictionary, it is not difficult to see that after the enumeration, in general, "etc." will be followed by several words. For those who do not follow the number, it can basically be regarded as an unfinished list. Of course, this is not entirely the case, for example: China's existing Beijing, Shanghai, Tianjin, Chongqing and other municipalities directly under the central government. In this sentence, "etc." is not followed by a number word, but it is common sense to know that the "etc." in this sentence is the end of the enumeration.
When understanding laws and regulations, the above principles can also be followed: First, see whether there is a total number word after "etc." Second, judge through common sense whether the enumeration has been exhausted. If the answer is no, it means that the enumeration is not exhausted, it belongs to the outside, etc.
Although the word "etc." has unclear meanings and gives rise to ambiguity, it is indispensable in terms of drafting and legislation. First, as a list after the tail, you can use the statement to be more smooth. Second, when it is used as an unfinished list in legislation, it can leave a certain amount of discretion to deal with situations other than explicit enumeration.
Whether it is Chinese usage habits or legislative practice, in laws and regulations, most of the words "etc." are used in the second case, indicating that the enumeration is not exhaustive.
03
In practical work, when it is necessary to distinguish the meaning of "etc.", it is basically encountered that there are situations other than enumeration. It is not clear whether the situation encountered is included in the "etc." To this end, it is recommended that:
The first is to seek authoritative explanations. Seek authoritative interpretation by consulting the explanations at the time of legislation, the interpretation after the promulgation of the law, judicial interpretations, including asking for instructions from organs with the power of interpretation.
The second is to visit the judicial department. For grassroots law enforcement, seeking authoritative explanations can be challenging. In ordinary work, they may often visit reconsideration bodies and courts to report on situations other than enumerated situations encountered in the process of law enforcement, and to hear the understanding and opinions of judicial departments.
The third is to establish an audit mechanism. Establish coordination mechanisms within law enforcement agencies, and (1) advance research and judgment of possible external situations. (2) Carefully study the external situations that have been encountered and determine whether they are roughly equivalent to the situations expressly enumerated. (3) After collective discussion, it is determined whether the extraethmic situation is included in the etc.
04
Although the use of "equality" in legislation is to reserve a certain amount of discretion for complex situations or new situations, law enforcement departments should still be cautious when using it in specific cases. We must pay attention to preventing the encounter of new situations, the inability to find the law, the first time things, turn the word "wait" into a basket, and expand the power of administrative law enforcement indefinitely.
attach:
Reply of the Supreme People's Court to Recommendation No. 1808 of the Third Session of the Thirteenth National People's Congress
Your "Suggestions on Further Regulating the Use of the Word "etc." in Laws, Regulations, and Judicial Interpretations" has been received, and the reply is as follows:
Standardizing the use of the word "etc." in judicial interpretations and normative documents plays an important role in reducing or eliminating differences in the understanding and application of law, unifying standards for the application of law, and maintaining legal authority. The relevant suggestions you put forward are basically in line with the current judicial practice and the reality of judicial interpretation work, and have positive and obvious reference value.
I. Regarding the difference in the judicial organs' understanding of the word "etc." in the law, it may lead to the issue of conflicts of procuratorial laws in individual cases
You pointed out that the judicial interpretations of the Supreme People's Court and the Supreme People's Court on Article 54 of the Criminal Procedure Law have different understandings of the provisions of the law. Regarding the "illegal methods such as extorting confessions by torture" stipulated in Article 54 of the 2012 Criminal Procedure Law (Article 56 of the 2018 Revised Criminal Procedure Law), the first paragraph of Article 95 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China stipulates: "Where corporal punishment or disguised corporal punishment is used, or other methods are used to cause the defendant to suffer severe pain or suffering physically or mentally, to force the defendant to confess against his will, It shall be found to be an 'illegal method such as extorting confessions by torture' as provided for in Article 54 of the Criminal Procedure Law. ”
The second and third paragraphs of article 65 of the Rules of Criminal Procedure of the People's Procuratorate (for Trial Implementation) stipulate: "Extorting confessions by torture refers to the use of corporal punishment or covert use of corporal punishment to cause criminal suspects to suffer severe pain or suffering physically or mentally in order to extract confessions." "Other illegal methods refer to methods in which the degree of illegality and compulsion of a criminal suspect is compelling a confession by torture or violence or threats to force him to confess against his will." The interpretations of the "two supremes" on "illegal methods such as extorting confessions by torture" differ in expression, and the substantive content is the same. Article 2 of the Provisions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice on Several Issues Concerning the Strict Exclusion of Illegal Evidence in the Handling of Criminal Cases stipulates: "Confessions made against one's will by violent methods such as beatings or unlawful use of restraints or disguised corporal punishment, causing criminal suspects or defendants to suffer unbearable suffering, shall be excluded." This expression has been absorbed by Article 1 of the Procedures for the Exclusion of Illegal Evidence in The Handling of Criminal Cases by the People's Courts (for Trial Implementation) and Article 67 of the Rules of Criminal Procedure of the People's Procuratorates (2019), unifying the grasp of the "two supremes" on "illegal methods such as extorting confessions by torture".
II. Regarding the unclear meaning of the word "etc." in judicial interpretations, it has led to differences in understanding in practice
You pointed out that the Opinions of the Supreme People's Court on Several Specific Issues Concerning the Handling of Voluntary Surrender and Meritorious Service enumerate four main situations for "assisting judicial organs in apprehending other criminal suspects", and attach the expression "etc." It is not easy to understand. Proceeding from the original intention of the legislation and the actual situation, the word "etc." here should be interpreted equally. Considering the complexity of the situation in judicial practice, there should be a certain amount of discretionary space for handling situations other than those explicitly enumerated, but at the same time, the circumstances involved should be specifically considered, and it is necessary to accurately determine whether they are roughly equivalent to the four acts explicitly listed, such as inviting criminal suspects to a designated location, identifying criminal suspects on the spot, leading investigators to arrest criminal suspects, and providing important information on criminal suspects in other cases that the judicial organs have not yet mastered, so as to ensure that the determination of "assisting in the arrest of other criminal suspects" in relevant cases is in line with the law. Realistic.
Third, the reference and treatment of the proposed program in future work
We endorse the proposed solution to the problem. First of all, at present, in the drafting of criminal justice interpretations, the "two supremes" have strengthened communication and coordination, and the relevant judicial interpretations have solicited each other's opinions and solicited the opinions of the Legislative Affairs Commission of the National People's Congress, and most of the judicial interpretations have been jointly issued by the "two supremes", which has solved the problem of the unity of judicial interpretations. Second, the Supreme People's Court has continuously strengthened and improved the management of judicial interpretations, making it clear that the drafting techniques should be refined, trying to clearly enumerate them as much as possible to reduce the unnecessary use of the word "etc.", and clarifying the semantics or restrictions of the word "etc" for those that must use the word "etc.". Third, in the process of drafting judicial interpretations, strengthen research, full communication, and widely solicit opinions to avoid differences and disputes. Finally, where there are differences of understanding in judicial interpretations due to the use of the word "etc.", the meaning of relevant terms is further clarified in a timely manner through the form of cleaning up, revising, or publishing Guiding Cases in judicial interpretations. Thank you for your concern and support for the work of the People's Court.
August 21, 2020
Reply of the Supreme People's Procuratorate to Recommendation No. 1808 of the Third Session of the 13th National People's Congress
Representative Liu Hua:
Hello!
Your "Suggestions on Further Regulating the Use of the Word "etc." in Laws, Regulations, and Judicial Interpretations" has been received. Thank you for your importance to this work! Your suggestions will be handled separately by our institute and other relevant units. Our hospital attaches great importance to it, and after careful study, the reply is as follows.
The Supreme People's Procuratorate's formulation of judicial interpretations on the specific application of law in procuratorial work is an important measure to ensure that procuratorial organs unify the standards for the application of law, and is of great significance to safeguarding the uniform and correct implementation of national laws and promoting judicial fairness. When formulating judicial interpretations on procuratorial work, it is necessary to follow the legislative purpose, principles, and original intentions, and make operable provisions on how procuratorial organs specifically apply the law, so as to guide judicial practice. Therefore, the language used in judicial interpretation should be standardized and rigorous, and the meaning should be accurate, so as to avoid differences of understanding due to unclear semantics. Regarding the use of the word "etc.", there are generally two situations in judicial interpretations, one is to indicate the tail after the enumeration, that is, "equal within the wait"; the other is to indicate that the enumeration is not exhausted, that is, "equal outside the wait". In the judicial interpretations formulated by the Supreme People's Procuratorate in the past, the word "etc." was mostly used in the second case, indicating that the enumeration was not exhausted.
The suggestions you put forward pointed out the irregularities in the use of the word "etc." in the current formulation of laws and judicial interpretations, and put forward solutions, which have important reference significance for the correct use of the word "etc." in the formulation of judicial interpretations on procuratorial work, and we will absorb and learn from it in our future work. Combined with your suggestions, when formulating judicial interpretations on procuratorial work, we will standardize the use of the word "etc." from the following aspects.
First, where it can be determined by way of enumeration, it should be enumerated as completely as possible, and the use of the word "etc." should be reduced as much as possible in judicial interpretations. For example, article 37 of the Rules of Criminal Procedure of the People's Procuratorate (Supreme People's Procuratorate Fa Shi Zi [2019] No. 4) stipulates that "the provisions of these Rules on recusal apply to clerks, judicial police, and translators and evaluators hired or appointed by the people's procuratorate", which adopts a comprehensive enumeration method to clarify the scope of personnel other than procuratorial personnel who need to be recused.
Second, it is really impossible to enumerate completely, and it is necessary to use the bottom of the word "etc", through the method of preposition addition or suffix addition, as far as possible, the connotation and extension of the content referred to by the word "etc" are clarified, so as to avoid ambiguity when applicable. For example, the first paragraph of article 27 of the Rules for the Supervision of Civil Litigation of the People's Procuratorate (for Trial Implementation) (Supreme People's Procuratorate Fa Shi Zi [2013] No. 3) stipulates that "the identification provided for in Article 25 of these Rules includes: (1) valid documents such as the resident identity card, military officer's card, soldier's card, passport, etc. of a natural person that can prove one's identity" and the second paragraph of Article 64 "Whoever makes a disturbance or impacts the hearing site, insults, slanders, threatens, or beats the procuratorial personnel and so on seriously disrupts the order of the hearing shall be investigated for responsibility in accordance with law". That is, through the two ways of preposition and suffix addition, the accurate meaning of the content of the word "etc." is clarified, and the uniform and correct application is ensured in judicial practice.
Third, in the process of formulating judicial interpretations, further strengthen communication and coordination with the Supreme People's Court, pay attention to listening to and absorbing the opinions of the Supreme People's Court, and avoid the phenomenon of inconsistencies and inconsistencies between the judicial interpretations of the "two supremes".
Fourth, after the judicial interpretation is formulated, through methods such as writing articles, writing books, and conducting professional training, the understanding and application of the provisions containing the word "etc." in judicial interpretations will be interpreted in detail, and guidance will be strengthened for the problems that arise in the application of the provisions containing the word "etc." after the implementation of the judicial interpretations, so as to ensure that the relevant contents of the judicial interpretations are correctly implemented.
Thank you again for your interest in this issue! If you have any other comments and suggestions, please let us know in time. The contact line of our representatives and members is: 010-65209897; the specific department of this proposal is the Legal Policy Research Office, the undertaker Zhou Yonggang, tel: 010-65209169.
General Office of the Supreme People's Procuratorate
September 30, 2020
Source: Supreme People's Court, Supreme People's Procuratorate