The development of the theoretical system of civil law scholarship and the codification of civil law are closely related and of promotional function to each other.The codification of civil law can promote the systemat...The development of the theoretical system of civil law scholarship and the codification of civil law are closely related and of promotional function to each other.The codification of civil law can promote the systematization of civil law scholarship,perfection of the value system,development and modernization of civil law studies,and the systematization of legal hermeneutics.The subjectivity of China’s civil law scholarship,i.e.,the notions of problem-orientation,nativeness,practice,the times and innovations,can be improved during China’s civil law codification.The codification of civil law can promote the development of a theoretical system of civil law scholarship with Chinese characteristics,including the development of diversified elements such as values,content,system,hermeneutics and methods of civil law.展开更多
Criminal law interpretation in China faces two primary challenges in terms of value judgments. Normative interpretations often fall into circular and inadequate reasoning, while judges, the key figures in applying int...Criminal law interpretation in China faces two primary challenges in terms of value judgments. Normative interpretations often fall into circular and inadequate reasoning, while judges, the key figures in applying interpretive principles, frequently lack the necessary value judgment engagement and proficiency. Traditional criminal law interpretation is ensnared in a subjective-objective dichotomy, resulting in a misalignment with the aim of "legitimate and rational" interpretation practices in China. To rectify this, a philosophical shift is required to allow intersubjective value judgments while maintaining subjectivityobjectivity as the prerequisite. Criminal law interpretation ensures the completeness of value judgments through a combination of specialized knowledge and public discourse.This involves the creation of systematic criteria for value judgments and adherence to legal principles. The former necessitates defining the internal and external standards of value judgments, formulating rules for the resolution of conflicting standards, and underlining the practical importance of criminalization under law, or "no crime or punishment without law"(the principle that only the law can define a crime and prescribe a penalty) and "Where no law applies, it is permissible to redefine a crime as non-criminal or minor"(decriminalization).The latter involves three perspectives: logical reasoning and theoretical arguments;positive and negative judgments;and formal and substantive rationality. Moreover, it should be approached from four dimensions: normative orientation, individual case promotion, reverse exclusion, and constitutional guidance.展开更多
基金This article is the phased achievement of the National Social Science Fund Project:“Research on the Legislation on Personality Rights”(18ZDA143).
文摘The development of the theoretical system of civil law scholarship and the codification of civil law are closely related and of promotional function to each other.The codification of civil law can promote the systematization of civil law scholarship,perfection of the value system,development and modernization of civil law studies,and the systematization of legal hermeneutics.The subjectivity of China’s civil law scholarship,i.e.,the notions of problem-orientation,nativeness,practice,the times and innovations,can be improved during China’s civil law codification.The codification of civil law can promote the development of a theoretical system of civil law scholarship with Chinese characteristics,including the development of diversified elements such as values,content,system,hermeneutics and methods of civil law.
文摘Criminal law interpretation in China faces two primary challenges in terms of value judgments. Normative interpretations often fall into circular and inadequate reasoning, while judges, the key figures in applying interpretive principles, frequently lack the necessary value judgment engagement and proficiency. Traditional criminal law interpretation is ensnared in a subjective-objective dichotomy, resulting in a misalignment with the aim of "legitimate and rational" interpretation practices in China. To rectify this, a philosophical shift is required to allow intersubjective value judgments while maintaining subjectivityobjectivity as the prerequisite. Criminal law interpretation ensures the completeness of value judgments through a combination of specialized knowledge and public discourse.This involves the creation of systematic criteria for value judgments and adherence to legal principles. The former necessitates defining the internal and external standards of value judgments, formulating rules for the resolution of conflicting standards, and underlining the practical importance of criminalization under law, or "no crime or punishment without law"(the principle that only the law can define a crime and prescribe a penalty) and "Where no law applies, it is permissible to redefine a crime as non-criminal or minor"(decriminalization).The latter involves three perspectives: logical reasoning and theoretical arguments;positive and negative judgments;and formal and substantive rationality. Moreover, it should be approached from four dimensions: normative orientation, individual case promotion, reverse exclusion, and constitutional guidance.
