On The Comprehension And Application Of The "Proviso" In Article13in Chinese Criminal Law

Criminal law academic circles generally believe that Article13in Chinesecriminal law expresses the concept of crime. This provision on the concept of crimeactually contains two parts of content: firstly, mainly what crime is, secondly, what isnot a crime, and the second half of the provision is generally called "but" or "but"provision in the criminal law theory (if no special instructions, hereunder the "but" isreferred to the proviso in Chinese criminal law Article13). On the comprehensionand application of the proviso in Article13in Chinese criminal law, the criminal lawtheory and judicial practice have been debated intensely, at the same time, it deepensthe thinking and research on the provision, however there are still many issues thatpeople have not yet come to an agreement on. Humbly, aiming at this problem, theauthor intends to study the proviso from the angle of historical evolution, to exploretheoretical foundation and original thoughts of the legislative expression. On thatbasis, after combing and clearing the proviso’s connotation, distinguish with theconcept of crime or crime constitution, in order to clear the nature positioning andbasic functions of the proviso. With clarifying theoretical issues, demonstrate andexpound the necessity and feasibility of judicial application, and further from theaspects of procedure and substance build specific rules of judicial application andpath, may avail to the research on related theory of criminal law and judicialapplication.Specifically, based on the historical evolution, the existence of the proviso has itshistoric chance and realistic necessity, the former lies in the legislative backgroundand the influence of social environment, political climate, the latter lies in theexperience summary and theoretical sublimation of punish and prevent crime inChina’s criminal judicial practice, and subdivide the department lines, ensure a complete and unified, coordination of legal system in our country needs. At the sametime, the proviso is influenced by our traditional legal culture, legal thinking anddeep-rooted "Don’t to blame everyone in law" social ideas. The proviso is animportant and necessary part of the concept of crime. Understanding of the conceptof crime cannot stay on the level of what is a crime, it should focus more on what isnot a crime; not only attach great importance to the necessity and importance of thecriminalization, but also consider the possibility and feasibility of decriminalization;include not only to establish "quality" of crime stipulation, but also include to set upcrime stipulation of "quantity". Crime concept should be the unity of "quality" and"quantity", and as an important part of crime concept, the proviso should also be theunity of "quality" and "quantity" of decriminalization, which is the "amount" of"significant slight plot" regulations and the "quality" of "harmless" provisions--"isnot considered a crime", namely "is not a crime". The existence of the provisodoesn’t damage the crime constitution’s status as the only specifications andstandards for criminalization, but the premise is that the existing criminal law theoryof crime constitution is modified and improved. It means that the crime constitutionshould be a truly independent, comprehensive and complete standard to determinewhat crime is, and the only standard. It should achieve "into" and "out" mechanismand function, to prevent only being "into", not "out", to really build up the proviso’sposition in the crime constitution, carrying decriminalization mechanism. So, incombination of theoretical research on the basis of innovation and the judicialpractice need, demonstrate the necessity and feasibility of the proviso application,and from two aspects of the procedural law and substantive law to study itsapplicable path. It is, in the criminal procedure, give full play to the investigativeorgans, prosecuting organs and judicial organs in their respective advantages inlitigation stages, establish and improve the filtering mechanism, in order to realizethe possibility of decriminalization. In the aspect of substantive law, to clear theproviso’s judicial application effect, to ensure it can be used as a decision basis;perfect the principles and rules of the proviso’s judicial application, reduce itsambiguity, build its certainty; endow the justice to a certain extent and scope of discretion in order to realize the individual justice, so as to properly handle theprinciples and rules in case of contradictions and conflicts, to ensure the system ofcriminal law keep integrity, unity and its judicial application’s coordination, fairnessand justice. According to these, contributing to the positive interactive between thelegislative and the judicial, promoting the innovation and development of thecriminal law theory system, the maturity and perfection of the judicial practice.