Study On Criminal Law Miscellaneous Provisions

In the current criminal law, whether the general or specific provisions of criminal law, they are filled with a certain number of miscellaneous provisions. This is an indisputable fact. Although such clauses are much criticized by the theory circles, they are widely used in practice. This has determined the fate of such miscellaneous provisions. It is a matter of dispute but still exists in reality. What are the miscellaneous provisions? What are they and why do they exist? How many such clauses in China’s penal code? What categories do they fall in? What is the relationship between such clauses and the "imperial rule" principle? How can we interpret them? How can such clauses be put into use? With a confusing series of questions, this paper seeks to unravel the mystery of the “miscellaneous provisions”. This paper is composed of two sections, an introduction and the main text. The contents of the main text are composed of the following five chapters.Chapter I, An Introduction to the Miscellaneous Provisions, mainly discusses the definition of the term and the reason for their existence. Miscellaneous provisions refers to the clauses in the criminal law that legislators formulate in the form of provisions to regulate the situations that are unforeseeable and difficult to enumerated but can only be generalized. Miscellaneous provisions are characterized for their objectiveness, openness, complementariness, vagueness, fixity, and flexibility. Compared with uncertain legal concepts, the “etc”, “others” and wordings of this kind in the miscellaneous provisions belongs to the category of generalized uncertain legal concept; Compared with the elastic clause, the miscellaneous provisions are larger in scope than the latter. Such is also the case with their relationship with the general terms. The reason for the existence of the miscellaneous provisions lies in the limitless, imperfection of the norms of criminal law, rational knowledge of the orientation, the limitations of legal language, and the utilitarianism of criminal policy in objective reality.Miscellaneous provisions have both positive and negative value. The positive side refers to the positive role of the provisions. At the legislative level, the positive value of miscellaneous provisions is embodied in the fact that it makes the criminal law tightly organized, and balances the adaptability, stability of the criminal law, and leave room for its subsequent revision. At the judicial level, the positive value of miscellaneous provisions lies in that they facilitate the exercise of judicial discretion, conductive to individual justice, and leaves room for the creation of the criminal law by the judiciaries. In terms of the negative value, at the legislative level, it undermines the stability of the criminal law, and increases the likelihood of arbitrary handling, thus hampers the nature of security of the penalty law, affects the credibility of the criminal legislation of the criminal law, and gives incentive to the legislators’ laziness. At the judicial level, the negative value of the miscellaneous provisions lies in a lack of legal maneuverability, a possibility of the abuse of the discretion right, and results in the expansion of judicial power, affect the credit of criminal justice.Chapter II introduces the main categories of miscellaneous provisions, the clauses in the penal code of China and what categories they fall into. China’s current criminal law has 198 such provisions, among them there are 14 in the general provisions of the criminal law, 184 in the specific provisions of the criminal law. The miscellaneous provisions can be divided into two types, using the wording of "other" and "etc." respectively. For the most part in the ten chapters of the specific provisions of the criminal law, most of them are miscellaneous provisions, and they fall into two categories in terms of constitutive requirements and legal effect. As to the constitutive requirements, because of the difference in various requirements, the elements are not identical. The components of the specific provisions of criminal law provisions can be divided into the miscellaneous provisions of objective elements and those of subjective elements. The objective elements of miscellaneous provisions, according to the specific contents of the objective factors and the roles they play, fall into five categories, i.e., separate behavioral type, subordinate behavior, behavior object type, behavior subject, and behavior plot. The individual behavior of type miscellaneous provisions refers to the special provisions of criminal law provisions of Miscellaneous Provisions behavior mode or method alone can constitute a crime type of situation; subordinate behavior type miscellaneous provisions is the behavior method or means of criminal law provisions stipulated the specific method, only taking criminal acts to types or methods, this method or means from belongs to the crime types therefore, alone cannot be a crime type of situation; the behavior of the main type of miscellaneous provisions refer to the specific provisions of criminal law by miscellaneous provision in case of criminal behavior subject; behavior object type refers to the specific provisions of criminal law provisions by miscellaneous provision situation in the object specified offences; behavior plot miscellaneous provisions refer to those that the provisions that the criminal law defines in determining criminal behaviors.Chapter III is related to the legally prescribed punishment principle of miscellaneous provisions; it mainly discusses the relationship between miscellaneous provisions with the principle of legally prescribed punishment. The latter has experienced a process of production, establishment, and easing. In this process, the principle of legally prescribed punishment undergoes a change from absolute principle of legally prescribed punishment to relative principle of legally prescribed punishment. The clarity principle in criminal law is derived from the principle of legally prescribed punishment, and it has guiding significance to the operating rules for criminal law, and it can help us fully understand the principle of legally prescribed punishment. Although the professionals committed to the theory and practice have been diligently exploring the clarity of the criminal law, they have not achieved any objective gauging measure. The norms of criminal law are made up of individual legal concepts or terms, and individual legal concepts or terms more or less need to be interpreted to clarify the concepts or the meanings of the terms, and also the subjects and the scope of the specification. So given the necessity of interpretation, the degree of clarity of the criminal law has become an issue of definition with a relativity. The clarity of the criminal law does not require a detailed list of mechanical rules, otherwise it will be difficult to adapt to the rapidly changing social environment and the characteristics of the case, and also it is hard for the legislation technology to handle them. The clarity of the criminal law is a relative concept, and a thoroughly perfect criminal law is difficult to hard to achieve. So, the contents of the criminal law inevitably use some uncertain legal concepts and general clauses(miscellaneous provisions) other concepts or terms that need to be interpreted before they can be applied. Miscellaneous provisions and the principle of clarity of the criminal law focus on the problem of different levels. Because of the limitation of legislation technology, miscellaneous provisions and give the judiciary organizations certain privileges, allowing them to embody abstract concept of law in concrete cases. The principle of clarity of the criminal law stipulates that legislature should make the provisions of the criminal law clear enough and shall not use general, vague terms and in violation of the value of protecting human rights. The focus is not the same, therefore, miscellaneous provisions would not be in violation of the criminal law principle of clarity; And in legislative policy, the criminal law set out in the terms and does not conflict with the principle of clarity, and sometimes it is quite necessary to do so.Chapter IV miscellaneous provisions of the interpretation principle, mainly discusses miscellaneous provisions should be how to interpreted. The interpretation principle of miscellaneous provisions is universal and fundamental, and is a criterion with guiding significance, relating to the methods and reasons for the interpretation of miscellaneous provisions. As the general guiding principle, the principle of legally prescribed punishment has decisive role in the interpretation of miscellaneous provisions. Constitutionality principle means that the interpretation of the miscellaneous provisions should not conflict with the provisions of the constitution, but also actively enrich the connotation and the basic value of the constitution. The interpreter should choose the interpretation most appropriate to the constitution and the value it declares, especially when there are different interpretation possibilities and measurement of interests. Tolerance principle is interpreted in terms of out for some kind of anti-social behaviors, can use of civil, administrative, legal means to punish and prevent it as far as possible not to use the criminal law, only the above method is not enough to punish and prevent, to use the criminal law, criminal law should be moderate tolerance and restraint. The involvement of the criminal law must have the necessity, when there are other legal means to produce the same specification, the criminal law should not be involved in social life, and no matter in criminal legislation and criminal justice, should always take care of the criminal law of last resort, taking cautious punishment. The principle of legal interests protection means that the conclusions of miscellaneous provisions interpretation must be in line with legal interests, rather than stick to the literal meaning of the miscellaneous provisions. To interpret specific provisions of criminal law, you must first of all make clear the charges and legal interests that need to be protected by miscellaneous provisions, and then determine the specific terms of the provisions within the scope of the text, make the actions conform to the charges of the infringement of the legal interests that need to be protected, so that the goal of this miscellaneous provisions can be reached. The principle of proportion means that the interpretation and stipulation of any provision of the criminal law is not conceived from only one angle.,All-round comprehensive thinking of interests has its necessity, because any issue that the criminal law deals with all result from conflicts of interests. Because of the complicated social life, the same behavior happens under the same situation often have conflicting influence on interests, calling for a choice of the priority of the interests that need to be protected. What kind of interests protection deserves priority depend on the proportion principle in making judgment, so as to determine whether behavior constitute a crime. Since a long time ago, the criminal law circles in China have not distinguished the reasons from the interpretation method. The two are in different status as interpretation method. Interpretation of interpretation is to get the conclusion that the reason is that in order to prove the interpretation conclusion. Interpretations can be compatible, interpretation is usually mutually exclusive. It is the starting point and border line of the interpretation of miscellaneous provisions, and the ultimate range of interpretation. Therefore, the limitation to the syntax of miscellaneous and the effort to narrowing the scope seek to explore the real meaning of miscellaneous provisions. Opposing interpretation of miscellaneous provisions is based on positive expression of miscellaneous provisions deduced to the opposite meaning interpretation method. Correction to interpret the bottommost clauses refers to errors in a fallback provisions term, view the criminal law provisions to be corrected, to clarify the true meaning of the criminal law interpretation method, can effectively make up for the deficiencies and lack of miscellaneous provisions. The interpretation is to interpret the bottommost clauses homogeneity Miscellaneous Provisions and the reasons for the interpretation method is miscellaneous provisions. Homogeneity interpretation refers to property subject of interpretation to illustrate matters listed in the clause as a benchmark, interpret the miscellaneous provisions term “other”or “ect.”,it belongs to explanation and interpretation method. the miscellaneous provisions stipulate the terms of interpretation and interpretation, we should pay attention to the following four features: one is the homogeneous interpretation subject has broad and narrow sense. Not only the generalized subject of interpretation refers to the judicial body, include the legislative body and the subject, only a narrow interpretation of the subject refers to the judicial body; two is only applicable to the overall homogeneity interpretation provisions of language, and is not suitable for non miscellaneous provisions stipulated terms; three as an interpretation of reasons, properties of miscellaneous provisions interpretation to illustrate the terms listed items as a benchmark, emphasizing the consistency and harmony with the nature, in this sense, general provisions is an interpretation system. Four as an interpretation method, because the fallback provisions term meaning unclear, extensive, with the expansion of natural language, thus reveals the provisions must be limited to interpret. Homogeneity and so on is fundamentally different, and so on is in fact has made the essence of the criminal law text structural changes in the connotation extension. Homogeneity is concrete embodiment of the wordings of "other" or "etc." of the miscellaneous provisions in the criminal law, rather than consider behaviors unclearly stipulated by the criminal law. In judging the "quality" in specific provisions of criminal law, we should take note of the following six situations:(1) the subject attribute of the behavior,(2) the attribute of the behavior itself,(3) attributes of the manner of the behavior;(4) the attribute of the target of the behavior.(5) the nature of the subjective purpose,(6) the nature of the violation of legal interests.Chapter V talks about the application of miscellaneous provisions in judicial practice, mainly discusses how to use the miscellaneous provisions in the judicial practice problems. It is the judicial the miscellaneous provisions judgments activity in essence, and the core issue is how the judicial subject to miscellaneous provisions to interpret. We should pay close attention to two points: one is embodied miscellaneous provisions. Although it is hard to define them, it is still possible to generalize the abstract miscellaneous provisions, and describe them. The concrete realizations can be achieved through judicial interpretation and court judgment, judicial interpretation and case of accumulated gradually clear miscellaneous provisions. Two is to Formulate miscellaneous provisions in certain types. In the process of making miscellaneous provisions of the process, can be typed in case comparison, further establish type. When accumulated to a certain degree of the judgment, decision information can be used as the basis of inductive types. In other words, when they use miscellaneous provisions in specific cases, judiciary must judge on case-by-case basis, and when they accumulate the cases as time passes on, they can form a system of this kind. Out in the terms of the interpretation of the context, miscellaneous provisions of the specific law refers to present clearly and accurately through certain way out. In contemporary China, judicial interpretation and court decision are the two ways to realize miscellaneous provisions embodiment. Judicial interpretation of miscellaneous provisions should deal with the following two questions: one is it should not include inappropriate matters in the scope of miscellaneous provision; the cited matters must match the listed samples in their nature. 2. it is included in out provision culvert perturbation range of items must be specific matters, and not is not clear and not accurate, the judicial interpretation embodied miscellaneous provisions in the process of judicial interpretation itself can no longer use miscellaneous provisions, or violate the original intention of judicial interpretation embodied miscellaneous provisions. Court ruled miscellaneous provisions of the concrete, is the judge miscellaneous provisions to hear cases, thus forming process of court decisions, it is also the miscellaneous provisions insight into process: on the one hand, the judge should be within the existing criminal law system to interpret miscellaneous provisions. On the other hand, the judge shall interpret the principle, using miscellaneous provisions interpretation method in a scientific way, and provide sufficient interpretation reasons for the miscellaneous provisions. In the interpretation of miscellaneous provisions, e context, the typed miscellaneous provisions is a justice on the basis of the specific miscellaneous provisions, by comparing the typed case, further establish type, make the criminal law applicable more utility. Miscellaneous provisions cases directly affect other similar cases, the final goal is to realize the case of systemization. To some extent, the typed miscellaneous provisions agreed with the subject of the present China case guidance system. Precedent is not peculiar to capitalism, the value of the test system has universality, the precedent system, we can’t influenced by ideology. In the short term, the case guidance system as the transition of precedent system is feasible; in the long run, the case guidance system must eventually evolve into the precedent system. Released by the supreme people’s guidance criminal case has the following four Inadequacies: 1.criminal cases are mainly concentrated in the field of traditional crimes, most crimes as natural, for professional, informative, strong legal made no involved; 2. it is guidance issued by the case, repeat cause waste of judicial resources; 3. the criminal case guidance is simply a loose collection of the cases but without sufficient reasoning. It is difficult to direct demonstration of other similar cases; 4. The situation is not yet releasing one criminal case with miscellaneous provisions. The case guidance system of miscellaneous provisions, in addition to being able to mitigating the negative value of the aforementioned negative value of the provisions, can also create specific rules, standardize case judgment and judicial revision interpretation, thus saving judicial resources, and predict the effect of the precedent case system. The selection of miscellaneous provisions guiding cases seeks to provide the premise of case guidance system. The selection of guiding cases should be correct, deal with difficult issue, live up to professional standard and special standard. The reasoning of miscellaneous provisions guiding case seeks to form the core of the case guidance system. Among them adequate reasoning is very critical. Sufficient reasoning for miscellaneous provisions guiding cases is essential, as it can not only request a judge to highlight the main issues, but also give response to the issues with relevant material. While taking measures as a response, the judge must assert his or her own position and state his or her point of view, and the views should be fully demonstrated. The opening of the miscellaneous provisions guiding case seeks to serve as a guarantee of case guidance system. Public release is the first step, while the ultimate goal is in order to guide judicial and procuratorial practice. After the release of the guiding cases of miscellaneous provisions, the highest judicial organ shall carry out a full range of tracking activities, and the full-range tracking statistics is mainly embodied on the following four aspects: one is to track the response of the lower-level court to the guiding cases of miscellaneous provisions; 2. Collecting the responses of the theory circles to the reference cases of miscellaneous provisions; 3. Collecting the responses of the general public to the reference cases of miscellaneous provisions; 4. How the reference cases are used in practice. On the basis of the above tracking statistics, the highest judicial organ can carries on the empirical analysis, the conclusion in this way, to build miscellaneous provisions to provide scientific basis for case guidance system.