The Application Of The Proviso In Article13of The Criminal Law Study

The regulation of the thirteenth article in Chinese criminal law is the concept of crime, the regulation of the proviso is to express the rear half. Inspired by the Russian Criminal Law supplementary articles of criminal essence in article sixth, there was proviso in article tenth of the criminal law of1979. With the in-depth study of Chinese criminal law theory, not only heated controversy on the regulation of the proviso arose in the criminal law scholars, but also questioned the regulation of the proviso. In recent years, along with the "criminal law amendment (eight)" added the crime of dangerous driving, the regulation of the proviso was pushed into the teeth of the storm. Some scholars believe that the regulation of the proviso will break the principle of legality; some other scholars think that we can’t subject to quantitative problem of crime in the crime concept, even proposed to delete proviso, if quantitative analysis is needed, specific provisions can be placed in the specific provisions of criminal law. There are many scholars support the proviso, which can reduce crime. But as a part of the general concept of crime, proviso plays an important role in the judicial practice. But the value of proviso is to limit incorrect application of criminal law, which will narrow the scope of attack, place" the plot is obviously minor and the harm is not great" outside the criminal circle. The principle of modesty of the proviso in article thirteenth of the criminal law has the function of ensuring human rights. But there are many problems in the application of the proviso, for example, the understanding of the proviso’s content, the application precondition, the different understanding of applicable scope, there is no clear standard in judicial application, which will lead a series of phenomena of "the same case with different judgment ". These theories are of great academic value to me, which will conduct the research on the proviso application better. The full text is divided into three parts:The first part, because the concept of the proviso in criminal law is abstract, we should do normative analysis on proviso’s specific content. Firstly, criminal law scholars have many different views on the word of "plot", we should analysis what is "remarkable slight plot". Secondly, the understanding of "the harm is not great". Which means little harm has already begun to act but the dangers is small, and which is a kind of value judgment’s final state of harm behavior. The following, we think that "Do not think that is a crime." has not constituted a crime, but did not reach the requirements of crime, otherwise, which is contradictory to the article thirty-seventh of the criminal law of our country. Once again, the origin of proviso is not just the result of following Russian Criminal code, but also have very deep origin with our profound traditional culture and the legal thought, namely "the law does not govern the audiences" and "law ignore trivial things" of the traditional legal culture, that is the traditional legal culture of "the law does not govern the audiences" and "the law ignores the trivial things". Finally, the paper analysis the proviso’s legislation and judicial value function.The second part stated the proviso’s function of not guilty. Firstly, the paper analyzed the definition of not guilty and the causes of not guilty, as well as analyzes the mechanism of the crimes of foreign criminal law comparative, and summarized the specific not guilty causes to our country’s criminal law specific provisions. Secondly, this part analyzed the criminal policy of combining punishment with leniency, which is the basic criminal policy in the new era of our country, analyzed the relationship between criminal policy of combining punishment with leniency and the proviso, and put forward how to apply proviso reasonably can better play the role of the basic criminal policy of combining punishment with leniency. Finally, analyzed the relationship between proviso and the concept of crime, the relationship between proviso and the principle of legality and the relationship between proviso and the form of crime, introduced the crime of dangerous driving, and analyzed the crime of dangerous driving can apply the proviso clause.The third part discussed the problem of proviso’s judicial application. But apply to all provisions in addition to the specific provisions of criminal law legislation or judicial interpretation expressly provide cannot be used outside. Then analyzed the proviso’s judicial can apply the by public security organs, people’s procuratorate and the court. Also applicable to the proviso in should be combined with the form of traditional crime constitution in our country as well as the combination of the plot.