Selected Papers of The Jurist (法学家), Volume 2
Renmin Chinese Law Review: Selected Papers of The Jurist
Edited by Jichun Shi
Chapter 3: A new approach to distinguishing between extensive interpretation and analogy
For a long time, in terms of Chinese criminal law theory and practice, there has been no great need (or pressure) to define the boundary between interpretation and analogy, because legally, the Criminal Law of the PRC (1979) allows the existence of analogy, and judicially, the Supreme People's Court of the PRC is entitled to approve analogical conviction and sentencing. One of the two authorities can make the judicial interpretations. However, since the Criminal Law of the PRC (1997) establishes the principle of legality, and, in particular, the Constitution states that 'the State should respect and safeguard human rights' and lays down the principle of governance or the 'rule of law' that stresses that the State should be administered in accordance with law, the necessity, urgency and reality of distinguishing between extensive interpretation and analogy has been increasingly recognized. How do we distinguish between extensive interpretation and analogy? First of all, this depends on the concept of analogy and then on the concept of extensive interpretation. It is relatively easy to determine the concept of analogy because of the instances of legislation in Article 79 of the Criminal Law (1979) and of many judicial precedents. How do we define the extensive interpretation? No consistent views are yet agreed upon in the theoretical field of criminal law.
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