Professor Zhang Mingkai studied in the Law Department of Central South University of Finance and Economics from 1978 to 1982. He graduated in 1982 and studied for a master's degree from the school in the same year. He graduated in 1985 and stayed to teach.
It should be said that Professor Zhang Mingkai has been studying at Central South University of Finance and Economics for 7 years and has already had a very deep relationship with his alma mater. This article hopes to use the results of this interview to inspire and think about all law science students’ learning.
Q
You have always been the authority in the criminal law world. So what was your original intention for choosing criminal law as your research direction at the beginning?
A: This happened many years ago! I wanted to be a college teacher shortly after I went to college. I felt that students should like to listen to the course of criminal law.
There are cases in the Criminal Law, which is easier to talk about. It may be mainly because of this reason that the Criminal Law was chosen, without many special considerations.
I also thought about studying administrative law at that time, but at that time, the university had not yet taken administrative law courses. I had only read some books on administrative law written by Soviet scholars, which were all old books translated in the 1950s.
I thought administrative law was very important at the time, but this course was not offered at the undergraduate level, and there was not much information. I didn’t have such a systematic understanding of it. Later, I didn’t have the idea of studying administrative law.
Q
Nowadays, many people pay attention to laws and regulations, but do not pay much attention to legal principles. What do you think of this phenomenon?
A: This phenomenon may be abnormal. How can we explain those laws and regulations without legal principles? Behind every law and law is legally supported, but legally principles sometimes need to be abstracted from the articles.
so don't regard these two as opposing relationships. No matter what method you learn, you must be able to interpret the laws and regulations properly. Don’t always oppose the laws and regulations with common sense. Don’t always think that something is “legitimate or unreasonable” or “reasonable or illegal”. How can an unreasonable thing be legal? Is the law unreasonable? The interpretation of the law must be consistent with the law.
I have always opposed the terms of "legal or unreasonable" or "reasonable or unlawful". This is either a wrong understanding of "reason" or a wrong interpretation of "law".
Q
What impact do you think mock court competitions have on legal education?
A: Since I have never participated in it, I don’t know much about the specific content of your competition.
At Tsinghua University, such large-scale events, including some international competitions, seem to be students who sign up for it independently, and there is no special arrangement, and I am not very clear about the specifics.
I think this kind of competition provides some people with an opportunity in legal affairs training, etc. It is difficult to say that the results of the competition accurately reflect the overall legal education level of which school.
Q
What do you think you should stick to when reading books and academic theoretical research on criminal law?
A: The most important thing to stick to is to read more books. I think listening to lectures is not a good learning method for students. I never advocate that students run around to listen to lectures.
Japanese undergraduates basically do not listen to lectures, and German undergraduates do not listen to lectures everywhere. Because the content of the lecture is generally not so systematic, it will be very tired to talk about a logically rigorous content.
Many students mainly listen to the lectures and join in the fun, but in fact they didn’t learn much. Besides, if it is something that is really worth publicly published, the lecturer will publish the paper before or after the lecture. The time you spend reading the paper is much shorter than the time you listen to the lecture. You can read the paper repeatedly if you can't understand the paper. You can't understand any sentence during the lecture. You can't listen repeatedly.
Reading is very important. Don’t think that reading is out of practice when you mention it. Whether it is criminal law or civil law, there will be cases in the book, not that you must go to the public security, procuratorate, court or law firm to have cases. As long as you are good at observing, there are cases worth pondering everywhere.
In short, you still need to read more books. On the other hand, you should train your legal thinking more. I think Chinese legal education has done a very bad job in this regard. The most prominent manifestation is that there is no small discussion class.
In foreign countries, a common phenomenon is that a professor takes several or more students to hold discussion classes, which is conducive to improving students' legal thinking ability and improving students' creativity.
Q
What suggestions do you have in terms of undergraduate legal study and legal education?
A: I feel that many undergraduates nowadays have no plans. Students who are motivated only think that their scores can rank at the forefront of the grade, but they never think about what they will do in the future. Where your energy in college has a lot to do with what you will do in the future:
For example, if you want to do academic research, it is best to learn more foreign languages in college. It is not possible to rely on one English alone. , so you should set your goals early and don’t wait until the end.
Another suggestion is that club activities should vary from person to person. When you find that you have the ability to do an activity, don’t do it anymore. Don’t always do what you already know, and train yourself to do what you don’t know.
We held very few classes when we were in college, which is different from yours now. I think you should not choose too many courses, you must learn the most basic courses well. The most basic courses have the deepest theory, and some courses only draw on the theories or systems of these basic courses.
For example, in Germany and Japan, the system of tort law and the system of criminal law are exactly the same. They are both consistent, illegal and responsible for the constituent elements. If you learn criminal law well, the tort law will be very simple. Basic courses must be learned thoroughly. Our schools offer a lot of courses, and we often shorten the class hours of the most important courses, which is different from those abroad.
At the University of Tokyo, the Criminal Law School has been open for a long time. The general theory of Criminal Law will take one year, and the same is true for each theory. Students can achieve good teaching results through various theoretical classes and seminars, rather than doing surprises like us. Even if you study the same time, the effects of learning in the long term and outstanding in the short term are very different.
legal courses cannot be learned well by surprise, but require long-term thinking training and a sense of justice. The undergraduate law courses at Soochow University in Taiwan are five-year, and criminal law must be studied for five years. The contents of learning are different every year and progress through layer by layer. Basic courses such as criminal law, civil law, and jurisprudence have been learned in a solid manner, but other new types of people are relatively easy to learn science.
Q You have been a question-maker in the judicial examination criminal law for a long time. Have there been any trends in the criminal law question-making in the past few years?
A: The trend of is not discussed, but the judicial examinations have tested some key issues over the years, such as common important crimes. I can give you some suggestions for preparing for the vocational examination.
1. When encountering different opinions, you should use the guided book's views as the basis;
2. No matter which subject it is, you must be familiar with those relatively special laws;
3. It is recommended that you do the real questions from previous years, see the analysis of the real questions by the questioner, and don't do the questions that you have done correctly or know. Make a mark if you guess, wrongly or not. Do those questions next time. Be good at learning from one example and understand the principles behind them through real questions.
Q
You have always been passionate and rigorous in your academic performance. I would like to ask what your life is like?
A: Life is the life of ordinary people, nothing special. Every morning I get up and make a breakfast for myself, go to the office to read, write books, and handle some chores. I usually stick to exercise. I used to climb mountains for six or seven years, and then played badminton for a few years. Recently, my knees were not good, so I changed to jogging, brisk walking, etc.
originally liked singing, but I haven't sang much because of time. There are no other entertainment activities, but I don't find it boring. In short, it is to live an ordinary, ordinary and peaceful life.
Q
I think we need to improve more in reading and learning now. Please recommend books on criminal law.
A: If you study criminal law, you must first read authoritative textbooks at home and abroad. I often say that you should not read books horizontally, but read them vertically.
You must read a book from beginning to end in a solid way, and you must read it repeatedly several times. You will encounter some problems when watching. For example, if you read two books differently, you have to think about why this book is written like this and that book is written like this? There must be fundamental reasons and reasons behind it, so that you can make the systems of different scholars very clear and the foundations behind different systems. When you read a certain book, you may not understand it. It doesn’t matter. Keep going forward. Maybe you will understand the one in the front.
Every subject has knowledge that is based on each other, so you don’t have to worry about not understanding it. Don’t sit there in a daze when you can’t understand it, stop reading or read other books. Read books systematically and give priority to reading textbooks.
Some textbooks, such as some domestic textbooks, have some comments below. You should be good at using comments.
generally has two situations: one is that if his view comes from which paper, you have to look at the paper specified by the annotation; the other is to refer to the author's own paper. The paper he published is written in detail. As a textbook, it is impossible to completely bring the paper up. When it only puts the essence of the paper or the conclusion in the textbook, look at its annotations and then check the information.
You are much more convenient to read books now. We used to work hard to read and find books, but now you can go to CNKI and others.
Q
Teacher, do you recommend us to learn the second and third foreign languages. Is this how we can directly absorb some foreign knowledge and views?
A: You can read foreign literature directly, which is different from reading translated literature. Translation is translated by the translator according to his own understanding. Any translation is mixed with the translator's understanding. Relying entirely on other people's translation is prone to errors. It is best to understand foreign languages yourself and not to rely on others to translate everything.
For example, what kind of problem do you want to study, but others cannot translate it for you just because you want to study, and even professors cannot do it. For example, if I want to read something German now, it is impossible for others to translate it for me. Even if the students I guided by are German, I dare not ask him to translate it because I can't bear to let the students spend so much time, so he has to study it himself.
But if you know a foreign language yourself, it will be different. It is also very convenient to check foreign literature now. For example, you can go to a foreign academic website to find the desired literature.
Q
Teacher, I would like to ask you a question for a comparative study. Because comparative research is essentially divided into many levels, such as structural comparison, functional comparison, and cultural comparison, I am about to write a graduation thesis. Now some papers may simply compare structures in order to improve their own levels. So what do you think about the issue of comparative research?
A: I have no research on comparative research itself. When I encounter a problem and am confused, I will see what some of the views of German and Japanese scholars are.
If the legal provisions are the same, the general people's ideas on this issue are similar, and the national conditions do not affect the views on this issue. When the views of German and Japanese scholars are the same, I will accept their views without hesitation. If the two countries of Germany and Japan handle differently, then I need to think about which one is more suitable for our country, or whether they are neither suitable for them. There are also Germany and Japan, but it is not suitable to get China.
In short, I need to consider whether Germany and Japan are consistent, whether the provisions of our criminal law are the same as them; consider what are the differences between our national conditions and them on this specific issue, and whether it will affect the conclusions; whether the values of ordinary people are different; and also consider whether the Chinese can accept certain conclusions; from the perspective of development trends, what we should be like - this must be considered comprehensively.
Q
Read your textbook, the aggravated clause of robbery impersonating military and police personnel to rob. Many people object that you explained it as a fake and acting contrary to the basic meaning. What do you think?
A: If the conclusion of an explanation looks particularly smooth at the moment, anyone can make this explanation. In other words, if you think that only the explanation conclusion is the same as the literal meaning expressed in the text, or just look at the literal meaning of this conclusion, and then you adopt the conclusion, it is enough to learn Chinese. Often, some situations force you to make explanations that seem awkward compared to the meaning of the text. What is the problem?
In fact, everyone says what they think is reasonable as the law says, and every interpreter does this. What I cannot accept is this statement: "Although this conclusion is unreasonable, it is like this according to the legal provisions", "Although this conclusion is not good, it is stipulated by the law."
Since you think this conclusion is not good, you cannot take such a conclusion. You must find ways to draw a good conclusion. So, I always want people to be filled with justice. Of course, everyone's sense of justice may be different, but it is better for everyone to interpret the law according to their own sense of justice than for everyone without a sense of justice.
I cannot accept the conclusion that the robbery of fake military and police personnel is sentenced to heavy punishment, while the robbery of real military and police personnel is sentenced to light punishment. There was a case in Sichuan. The real police invited an unemployed person to rob him together, gave the unemployed a set of police uniforms, and went to rob a small hotel together. I cannot accept the conclusion that the police are sentenced to fixed-term imprisonment of not less than 3 years and not more than 10 years, and the other unemployed person is sentenced to fixed-term imprisonment of not more than 10 years to death to . This is an unfair conclusion, an inconsistent conclusion, and this should not be the true meaning of the law.
This forces me to explain the word "fake" in this way, and the explanation is different from others, which is obviously not smooth and awkward. There will definitely be many people who disagree with it, which is normal.
will only accept it unless it is explained in this way in the very smooth text and the conclusions drawn are completely reasonable. But the problem is that legal provisions cannot be done like this. If they are all like this, there is no need to explain it. But this cannot be said to be flawed or loopholes in the law itself. It is mainly a question of how to explain it.
Q
I think the criminal law is relatively severe. It appears in a way similar to punishment. The civil law may appear more friendly and appears in a way of mediation. So how do you think we should view the provisions of the criminal law, that is, what are the functions or values pointed to by the criminal law?
A: The criminal law is very strict in terms of consequences, and it is precisely because it is very strict. You must treat the case with a tolerant attitude. When handling cases, judges or people who do research should think of both the victim and the defendant, his family, his future, and what reasons the defendant did to carry out this behavior.
This face of Criminal Law has everything. It is not that because its consequences are very severe, you must treat the suspect and the defendant with a very strict attitude without any tolerance and strictness. You must consider all aspects. There are some good judges who will try to take care of various situations when applying the criminal law, especially to avoid some harsh situations.
We emphasize the functions of criminal law, one is the protection of legal interests and one is the protection of human rights, which is an eternal topic. It is inappropriate to simply take care of either party.If you stand completely from the victim's standpoint, he would rather kill all the defendants; if you stand completely from the defendant's standpoint, you will find that he is unwilling to go to jail. How to achieve a balance between the two functions to maximize the implementation of the above two functions is a very important issue.
Q
Criminal Law Amendment 9 has come out. Do you think there is any major change in the main views of Xing Jiu and the previous criminal law? There are some increase or decrease in charges. Do you think this is a substantial change in the criminal law on substantive issues?
A: is not a question. It is definitely different in terms of legislative theory and interpretation. This time there are many changes and great changes, but it is difficult to see any obvious trend from the overall perspective. If there is one, it is nothing more than a more severe crackdown on terrorist crimes, a more detailed regulation on punishment for cybercrimes, and some loopholes have been filled.
China's criminal code was originally fragmented, but now it is still filled in fragmented ways. It is still a long time to want a good criminal code. This has something to do with our legislative model, because in foreign countries, the criminal code is relatively stable, but they have a large number of single-in execution criminal laws and affiliated criminal laws.
How many foreign affiliated criminal laws are stipulated in them are countless, and there are definitely thousands. Regarding intellectual property crimes, Japan does not stipulate in the Criminal Code, but the Trademark Law, Copyright Law, Patent Law and other laws really stipulate more than 70 crimes regarding intellectual property rights. We also think that there are many of our seven intellectual property crimes, which is actually only one-tenth of that of Japan.
I am not saying that the more crimes there are, but that crimes that are easy to change are best not stipulated in the criminal code. Since foreign criminal codes stipulate that all natural crimes are committed, the criminal code is relatively stable. We now want to stipulate all crimes in a criminal code, so we need to constantly amend the criminal code, which is worthy of reflection by the legislature.
Q
Do you have any suggestions for the exercise of appropriate regulations on the discretion of judges in the field of criminal law?
A: There are two different questions here. First of all, you cannot expect that the law stipulates that judges have no discretion, and if they do not have discretion, it is impossible to call it.
Justice is alive. If the case changes slightly, there should be differences when it is handled. It is impossible to pass specific and detailed legal provisions to leave judges without discretion.
Secondly, how can judges take discretion within the scope of space left to themselves by the law? Discretion does not mean that you can do whatever you want. When the discretion is exercised, the space, size and degree of exercise should be exactly the same as the spirit and reason of the law. If the law wants to punish it lightly, then the discretion should be lighter.
has an invisible law or natural law controls the exercise of discretionary power, and the content of natural law and written law is consistent. The judge himself must have good qualities, and the judge must have a natural law in his mind. If not, the rules set by the law will be useless.
Everyone should turn the concept of Dharma into the real thoughts deep in their hearts. If this concept is not the idea deep in your hearts, you may soon forget it. When turning it into a deep thought, it is my own thought, not imposed on me by others.
You should train yourself through various channels such as reading, observing, and communicating, and turn the concept of Dharma into the true thoughts deep in your heart.
