First, paying attention to the setting of laws and regulations has not changed the content of basic laws and regulations, but only reiterated the content of relevant laws and regulations; Even if there is no notice provision, the application has corresponding legal basis (according to the basic provisions).
Second, the notice provisions are only suggestive, and their contents are completely consistent with the basic provisions, which will not lead to the punishment of acts that do not meet the relevant basic provisions.
The characteristic of legal fiction is that different acts are treated as the same act, or acts that do not conform to a certain provision are also treated as such.
The special feature of legal fiction is that even if an act does not conform to the relevant provisions of the criminal law, it must be punished according to the relevant provisions under the special conditions stipulated in the criminal law.
Distinguishing method:
First, is it necessary to set up a notification ordinance? If it is necessary to take notes, it can be notes; If there is no need to make a note clause at all, the clause made may be a legal fiction. For example, the behavior stipulated in the fourth paragraph of Article 198 of the Criminal Law is already in line with the conditions for the establishment of the crime of insurance fraud. However, in order to prevent judicial staff from identifying the act of providing false documents for insurance fraud as the crime of providing false documents, the legislator set up a reminder to remind judicial staff to identify this act as the crime of insurance fraud. For another example, if the second paragraph of Article 267 of the Criminal Law is regarded as a notice provision, it means that the legislature specially reminds judicial staff to identify robbery with weapons as robbery, so as to prevent judicial staff from identifying robbery with weapons as other crimes. Obviously, no one will think it necessary to set up a nursing clause. Accordingly, it can be considered that this paragraph does not belong to the care clause. ?
Second, is there a reason to make legal fiction? Because the characteristic of legal fiction is to give T 1 legal effect to T2' s behavior, it needs to be considered: Is there a reasonable reason to give T 1 legal effect to T2 that does not meet the constitutive requirements of T 1? If there is no fictional reason, it should be interpreted as paying attention to the regulations; On the contrary, it should be interpreted as legal fiction. For example, the second paragraph of Article 259 of the Criminal Law stipulates: "Whoever rapes the wife of an active serviceman by coercion by taking advantage of his authority and affiliation shall be convicted and punished in accordance with the provisions of Article 236 of this Law." If this article belongs to legal fiction, that is, as long as the wife of an active-duty soldier is raped by taking advantage of authority and affiliation, even if it does not meet the constitutive requirements of rape, it should be punished as rape, then what is the reason? There is no reason for this explanation. Even if the reason that "the wives of active servicemen need special protection" is far-fetched, it cannot be recognized. Therefore, this clause belongs to the notice clause. Therefore, Article 236 of the Criminal Law can only be applied when the behavior fully meets the constitutive requirements of the crime of rape stipulated in Article 236 of the Criminal Law. ?
? Third, is the content of a certain clause the same as that of the basic clause? If they are the same, in principle, they should be interpreted as attention regulations; Otherwise, it may be interpreted as legal fiction. For example, the contents expressed in the first and second paragraphs of Article 183 of the Criminal Law are the same as those expressed in Article 27 1 and Article 382 of the Criminal Law respectively, and these two paragraphs can be considered as matters needing attention. For another example, the crime of "armed robbery" in the second paragraph of Article 267 of the Criminal Law is different from the content of robbery stipulated in Article 263 of the Criminal Law, but it still gives the former legal effect to the latter, so it belongs to legal fiction. ?
Fourthly, when it is interpreted as legal fiction, is there a significant difference between the acts stipulated in it and the criminal acts stipulated in the basic provisions in terms of infringement of legal interests? Although legal fiction endows two different behaviors with the same legal effect, it can be stipulated because there is no obvious difference between the two behaviors in infringing legal interests, or the degree of infringement of legal interests is roughly the same. Otherwise, the legal fiction itself lacks rationality, and it may be more appropriate to interpret it as a notice clause. For example, the third paragraph of Article 300 of the Criminal Law stipulates: "Whoever organizes or uses a cult organization or uses superstition to rape women and defraud property shall be convicted and punished in accordance with the provisions of Articles 236 and 266 of this Law respectively." If this paragraph is interpreted as a legal fiction, that is, as long as the perpetrator organizes, uses church doors, cult organizations or superstitions to have sexual relations with women, he should be convicted and punished for rape, then it will be found that this kind of behavior is significantly different from the infringement of the legal interests of rape, that is, the above behavior only violates the social management order, while rape infringes on women's sexual inviolability. Therefore, it is appropriate to interpret the above provisions as notification provisions, that is, organizing, using church doors, cult organizations or using superstition to rape women can only be convicted and punished for rape if it fully meets the constitutive requirements of rape. ?
Fifth, is there any special content in this clause? Note that the provisions are often only suggestive, or have specific contents but do not add special contents beyond the basic provisions; Legal fiction has added special content. For example, Article 287 of the Criminal Law stipulates: "Whoever uses computers to commit financial fraud, theft, corruption, misappropriation of public funds, theft of state secrets or other crimes shall be convicted and punished in accordance with the relevant provisions of this Law." This article is only an indicative clause and obviously belongs to the notice clause. On the contrary, Article 267, paragraph 2, Article 269 and Article 289 of the Criminal Law all add special contents to the robbery stipulated in Article 263 of the Criminal Law, so that acts that do not meet the constitutive requirements of robbery are also recognized as robbery, so they belong to legal fiction. ?
In a word, we should correctly distinguish the notification clause from legal fiction through various interpretation methods such as institutional interpretation and teleological interpretation.