A Research On Judicial Application Of The Proviso Clause Of Article 13 Of The Criminal Law Of The People’s Republic Of China

The proviso of article 13 of China’s criminal law has been under criticism since its stipulation.From the point of existence,some people are in favor of its innovation,thought it has great significance;while others regard it as an “exotic” with unnecessary existence and should be deleted.These are just theoretical arguments.Since the proviso of Article 13 has originally stand in the general principles of China’s criminal law both in 1979 vision and 1997 vision,there is always the value of its existence.Because of its most basic connotation,function and scope of application are in dispute,its judicial application must be controversial.Any research is inseparable from the method of theory with practice;only in this way can the theory instruction practice and the practice feedback theory.Through the empirical research we find that the proviso does have many problems in application.Disputes exist both in theoretical basis and applicable way.In the reality of the rule of law,criminal integration,judicial reform etc.,the paper starts with connotation foundation of the proviso,by examining the realistic situation and analyzing the application dilemma and reason,to explore the solution.The paper comprehensively uses empirical,systematic,interdisciplinary and other research methods,with the “what-how-why-how to do” train of thought,step by step,to explore the application of the proviso of article 13 from all-round and multi-angle.The paper is divided into seven parts.The first part is the introduction,that is,the whole description of the studies on the provision of Article 13.The last part is conclusion,which is the feelings and thoughts on the study of judicial application of the proviso ofArticle 13.The rest is the paper’s body,a total of five parts,divided into five chapters to explore.The first chapter aims to introduce and define the basic implication of the proviso of Article 13 of the Criminal Law。It will make a comprehensive and meticulous,new and correct interpretation of the proviso mainly from the historical evolution,the basic meaning,and related analysis.It is just because people are ambiguous with the most basic theory of the proviso and can not fully understand it,makes them can not dare to apply it in practice.The proviso of Article 13 of China’s Criminal Law is to learn from the Soviet Union,which has experienced a series of processes from budding to maturity,from the formal concept of crime to the substantive concept of crime,and then to the mixed concept of crime.From this we can find that the proviso’s status in the whole system of crime,and the important role it plays in defining the crime circle of our country.Indeed,the definition of its connotation is controversial in judicial practice,each says he is right.However,no matter what theory,it should be reasonable,can stand in the judicial practice,and conform to the reality of social practice.In fact,the proviso is only 19 words plus a comma,but its connotation is rich,we must have its whole grasp in judicial practice,and can not understand and apply it separately.The proviso is an important part of the Article 13 of China’s Criminal law,but at the same time the proviso has its own unique function,in addition to the crime function,there are function of coordinate,tips and so on.These are reflected in the corresponding specific provisions and judicial interpretations.So it is inextricably linked with the concept of crime and the theory of crime constitution.The concept of crime is not equal to the constitution of the crime;the constitution of the crime is not the same as the establishment of the crime.As a statutory concept of crime,the first half of the Article 13 is a description of what is a crime,not a description of the constitution of the crime or constitutive elements of a crime,the constitution of the crime is the specification of the concept of crime,and it can not be confused.In judicial practice,the confused application of these concepts lead to the wrong case,which is also one of reasons that people fear applying the proviso of Article 13.It appears that the proviso of Article 13 has no connection with the suspended situation of the intentional Crime.But In fact,whether it is the preparation for a Crime,criminal attempt or discontinuation of a crime etc.,all have a certain relationship with the proviso of Article 13,which the suspended situation of the intentional Crime shall be applicable.The proviso of Article 13 is the total switch that controls the social harmfulness degree of a crime.If the case constitutes a crime,it must reach a certain degree besides the social harmfulness,which means meet the criminal penalties.Therefore,in this sense,the proviso is also a quantitative factor,which is in line with the quantitative factors in legislation and some judicial interpretation.The biggest difference between the Article 13 and Article 37 of China’s criminal law is the processing results.The application of the proviso of Article 13 is not considered to be a crime,reflected in the investigation stage is the consequences of the withdrawal,in the prosecution stage is the statutory non-prosecution,in the trial stage is to terminate the trial or the verdict of acquittal;even before filing,if the case belongs to the proviso of Article 13 after examination,the investigating authorities will not be placed on file.That is,the perpetrator has not reached the level of punishment,and is not considered to be as a crime,but it is still a general criminal offense.Therefore,The State Compensation Law of P.R.C.does not bear the responsibility of compensation for the detention of whose act is clearly of minor importance and little harm.The Article 37 means one’s social harmfulness has reached the penalty degree and the act has constituted a crime,just the person is exempt from criminal sanctions after conviction.The two Articles have a succeeding and sublimation relationship.The second chapter aims to introduce judicial application foundation of the proviso of Article 13.The development of anything is inseparable from the foundation;the application of the proviso of Article 13 is no exception.The disputation on the stipulation of the proviso of Article 13 both in judicature circle and theoretical circle also has a certain relationship with it.Without the foundation is not firm,with the foundation is not afraid.The application of the proviso of Article 13 not only has the criminal theoretical foundation,that is,the principle of legality and the modest restraint principle,but also has the criminal policy foundation of Combining Punishment with Leniency,as well as the judicial foundation of humanism philosophy.The principle of legality is a theoretical basis for the proviso of Article 13.According to this principle,reasons must be needed to justify a crime,otherwise not.The modest restraint principle,criminal policy of combining Punishment with Leniency,and the humanism judicial philosophy,all embody the lenity and tolerance.As an exception of crime in general principle of criminal law,the proviso of Article 13 is derived from this lenity and tolerance,and excludes the act “that is clearly of minor importance and little harm” outside the crime circle.This also provides a legal basis for China’s dual sanctions system,that is,"criminal punishment + administrative penalties." The modest restraint principle of criminal law is divided into the modesty of the crime and the modesty of the punishment.The modesty of the crime is not to consider an act which maybe a crime to be a crime as far as possible,and show its modest restraint.And the proviso of Article13 is the best embodiment of it.The third chapter aims to introduce the macro study of the application of the proviso and reflect on the problems.It grasps the status quo of the application of the proviso of Article by the national judicial authorities and the judiciary of Chongqing City from the macro data,and reflects the problems according to the current situation.In accordance with the law,the investigating organs,public prosecution organs,the judiciary may apply the proviso of Article 13,but according to the annual " two supreme judicial " work report or official news reports,the application of the proviso of Article 13 is not optimistic in the current circumstances.Every year the number of cases applied to the proviso is negligible.There are many reasons for this phenomenon through the empirical questionnaire.Some of them are unclear about the most basic theories of the proviso of Article 13,such as connotation,function,and origin,historical development,and other relations,thus lead to people dare not to apply it in Judicial practice.Some of them are not sure the proviso is a constituent element of the crime or punishment stipulation,and resulting in do not apply easily.Some are afraid of applying wrongly,affecting their own or unit’s assessment results.In general,people dare not to,do not want to,and can not apply the proviso in judicial practice.From the macro level,there are many reasons for the confusion in the application of the proviso,especially different understanding,differences in grasping the criminal policy,high external pressure,internal pressure and so on.The fourth chapter aims to study the application of the proviso in micro level and reflect on the problems.It will expound the practical problems encountered in judicial practice from the theory and practice,and base on analyzing the specific provisions of criminal law and standardization of judicial interpretations.In judicial practice,some controversy has a long history,such as the scope of the application and whether the proviso can be directly quoted as a basis for the case.As for the applicable scope of the proviso,according to the rule that general provisions guide the specific provisions,it can be applicable to all crimes.And the proviso of Article 13 can also be directly quoted in the judicial practice;such as Article 15 of the criminal procedure law,which is the combination of substantive law and procedural law shall be governed by the law;after all,the same rules in the Criminal Procedure law can be applicable too.Of course,through study the collection of practical sample,we find the phenomenon of misusing and abusing the proviso,which have a significant relationship with the understanding and mastering its connotation and essence.Although few cases applied the proviso in judicial practice,there are some applications on different cases in different periods,not only infringement of personal rights but also infringement of property rights,as well as other types of offenses.People have mixed reviews on the effect of application of the proviso.On the whole,applying the proviso when handling the case is worthy of recognition.However,some cases are controversial for no application.Some cases have the necessity to apply but not apply,such as drunk driving and pick pocketing and so on.Through the analysis of these typical cases and the reason found,we can lay a solid foundation for the solution.The fifth chapter is based on the analysis of the macro and micro causes of the application of the proviso of Article 13 to explore the optimal path of the application of the proviso.According to the principle of integrating subjectivity and objectivity,the subjective aspect needs the change of concept,cognition,and behavior;the objective aspect needs the perfection of system,regulation,and mechanism.It is necessary to establish a modern concept of criminal justice in applying the proviso of Article 13,but also to establish a people-oriented and dynamic judicial view.And the results of the ruling will not be questioned when judicial personnel handling cases with common sense and conscience.As an important factor,quantitative factors should be incorporated into the system of criminal establishment and give them a certain position;which can not only improve the traditional theory,but also be a major innovation.Modern justice is inseparable from public participation,so as the application of the proviso of Article 13.People’s jurors and people’s supervisors system are the manifestations of public participation,but need to further improve.Case guidance must be strengthened in the mass data era.This can provide precedent for the application of the proviso of article 13,so that the judiciary has a reference and dare to apply.When judicial lack credibility,reasoning is the key to convince people the application of the proviso of Article 13.In the background of judicial reform,improving the judiciary’s assessment system is useful and harmless for the application of the proviso of Article 13.