Ex Officio Reasoning in Dogmatics of the Criminal Law
Both ex officio reasoning and ex officio interpretation presuppose the exist-ence of a natural relation between two matters.The category of the argumentation based on this natural relation in jurisprudence methodology is called"interpretation"in Japan and"reason-ing"in Germany.Chinese scholars generally believe that the argumentation activity carried out on the basis of natural relation is a kind of explanation and therefore call it ex officio interpreta-tion.Meanwhile,some other theories call it ex officio reasoning instead.The four-part method of legal interpretation takes semantic interpretation as the center,supplemented by system inter-pretation,history interpretation and purpose interpretation,forming a more reasonable system of interpretation methodology.In this case,legal interpretation and legal reasoning are separated:only the interpretation that takes a legal text as its object can be called interpretation,all others can be classified into the category of legal reasoning.Legal reasoning and interpretation overlap to some extent,but the two should not be confused with each other.Ex officio reasoning means the existence of a natural relation between two things so that one thing can be treated the same as the other.It can be said that ex officio reasoning is a kind of logical reasoning based on natu-ral relations.Ex officio reasoning in law refers to the legal reasoning method that extends the ap-plication of existing provisions of law to the pending cases for which there is no explicitly appli-cable legal provision based on the fact that there is a natural relation between the existing provi-sions of law and the pending cases.In the field of civil law,ex officio reasoning can be defined as a method to close legal loopholes.In criminal law,however,ex officio reasoning for criminal-ization should be prohibited based on the principle of nulla poena sine lege.The ex officio rea-soning for decriminalization and other ex officio reasonings in favor of the accused still have the legitimacy of existence.Therefore,ex officio reasonings can be divided into those prohibited by criminal law and those permitted by criminal law.Ex officio reasonings can be divided into those based on natural relation and those based on logic.The former,such as a minore ad maius rea-soning or a maiore ad minus reasoning,are premised on the absence of express legal provisions,thus violate the principle of nulla poena sine lege and should not be adopted in the application of criminal law.In Ex officio reasonings based on logic,because there is a logical progressive rela-tionship between the two legal provisions and the second one is covered by the first,they appli-cation in the criminal law does not violate the principle of nulla poena sine lege.
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