On the interpretation rules of miscellaneous provisions in criminal law
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D924.3

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    Abstract:

    Ejusdem generis as the main interpretation method of miscellaneous provisions, shows misunderstandings and dilemmas in the process of academic understanding and judicial application. It cannot accurately determine the full application scope of miscellaneous provisions, and has the defects of arbitrary interpretation and cannot accurately define the scope of interpretation of miscellaneous provisions. The reason for this result, on the one hand, stems from the standard of ejusdem generis; on the other hand, stems from the neglecting of guiding function of the purposes of norm protection. Legislation activities are always carried out around the purpose of norm protection. Miscellaneous provisions and illustrative methods as part of the legal texts are all subject to the purposes of norm protection, and the guiding role of the purposes of norm protection in explaining miscellaneous provisions helps to determine the scope of conviction. In addition, compared with the vague and abstract miscellaneous provisions, illustrative methods have the effect of defining the type of behavior. Ejusdem generis based on the type of behavior is more conducive to the determination of the criminal illegality of behavior, to avoid the purposes of norm protection becoming the only interpretation basis of miscellaneous provisions, thus creating the risk of taking substantive illegality as the only reason for criminalization. Emphasizing the double standards of purposes of norm protection and illustrative methods help to achieve the coordination of law's stability and flexibility.

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梅传强,刁雪云.刑法中兜底条款的解释规则[J].重庆大学学报社会科学版,2021,27(3):110~121

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  • Online: June 09,2021
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