On The Judicial Application Of “Proviso”in Clause 13 Of Criminal Laws Of China

Clause 13 of “Proviso” in Criminal Laws of China has stipulated the incrimination restriction in China, i.e. act circumstance and perniciousness standards for incrimination in criminal laws. Boosting of judicial application of “proviso” can change thinking model and cultivate legal thinking of judicial officials and enhance the flexibility of judicial practice,making the application of criminal law pays equal attention to crime fighting and human rights guarantee. However, in the judicial practice, not much attention has been paid to the application of “proviso” in clause 13 of Criminal Law. We have more quantitative crimes and most of the judicial officials always apply clauses of laws directly when fix the punishment fitting the crime, which emphasize too much on the assessment of the key components of crime. Moreover, there is no uniformed application standard for “proviso” in the judicial circle, and the application environment for “proviso” is inconsistent. Therefore, the judicial officials will not apply the “proviso” easily in order to reduce the working burden, and the“proviso” has become a dull clause whose advantages have not been manifested in the judicial practice. Therefore, the optimization of judicial application of “proviso” is extremely urgent.This paper contains four parts in addition to introduction and conclusion.In Part I, the author has discusses the connotation of “proviso” in clause 13 of Criminal Laws and has also elaborated on the meaning and legislative background of “proviso”, and has analyzed the three conceptions of “obvious minor of circumstance of crime”, “little harm”and “not deemed as a crime” specified in “proviso” for the convenience of capturing the right direction for our analysis on judicial application of “proviso”.In Part II, the author has discussed the application significance to “proviso” of clause 13 in Criminal Laws in China and defines the necessity to optimization of judicial application of“proviso”.In Part III, the author has discussed the application existing situation of “proviso” of clause 13 in Criminal Laws in China in our country's judicial practice. The author has analyzed the circumstances under which the “proviso” is applicable in criminal judicial practice, and has also analyzed the optimistic existing situation in application of “proviso” in our country's judicial practice through data drew out from investigation and research duringJanuary through August in 2015 conducted by The People's Procuratorate of C County of Guizhou and The People's Court of County C of Guizhou.In Party IV, the author has proposed suggestions on accurate application of “proviso” of clause 13 in Criminal Law. Each case embodies different act circumstance and perniciousness;therefore it is unrealistic to standardization of judicial application of “proviso” directly through written rules. Therefore, the author has clearly defined the specific circumstance and perniciousness applicable to “proviso” in judicial practice, and lays emphasis on the standardization of subjective judgment during judicial official's application of “proviso” and also on the cultivation of legal thinking of judicial personnel.Practice has proved that the higher the level of development of the social productive forces, the more attention the people will pay on the value of human rights. The valuation orientation of society shall guide the criminal law should focus on protection of human rights and crime prevention, and not just as a tool to fight crime and maintain domination.Optimization the judicial application of "proviso” is in favor of breakthrough in the patterns of behavior criminal law application's over pursuit of formal rationality at this stage, thus prompting the judicial official pay more attention to the substance of rationality, thereby adjusting the incriminating standard of criminal law and embodying the modest and restrained principle of criminal law. However, the value of “proviso” is unable to be reflected in the short term, which not only requires strengthening the reasonable application of “proviso” in judicial practice but also continuous improvement in judicial practice. At this stage, we may gradually highlight the double value of crime fighting and human rights guarantee in the judicial practice through optimization of application of “proviso”.