The Application Of “Proviso” In Article 13 Of The Criminal Law

Drunk driving was included in the criminal law,and the control of drunk driving in all parts of the country was effective.However,shortly after the implementation of this regulation,the high crime rate and the rapidly increasing number of dangerous driving crime cases have caused people to start thinking about the crime.There is contention whether drunk driving is uniformly sentenced to imprisonment and“Proviso” can become the exception of drunk driving.The views between Ministry of Public Security and the Supreme People’s Procuratorate are completely different from the Supreme People’s Court.The former think drunk driving case with complication with the legal standards provisions and the driving behavior should be sentenced to the crime of dangerous driving.There is no room for negotiation.The Supreme People’s Court clearly states that “drunk driving should not be uniformly sentenced to imprisonment”.In fact,the “proviso” have been controversial since they were stipulated in the Criminal Law.There is no unified conclusion on the definition and application of the “proviso”.In addition,the “proviso” is not only confused in legislation,but also inaccurate in the judicial practice.Specifically,we should see the value of the existence of the “proviso”,which is an embodiment of the principle of limiting criminal law.As a necessary part of the concept of crime law,“proviso” confirms the legislative mode of “qualitative analysisand quantitative analysis” in our country: firstly,mainly what crime is,secondly,what is not crime.As a concept of crime,it is the foundation of crime.In turn,the composition of crime is a concrete manifestation of the concept of crime,both of which are abstract and concrete.Therefore,“proviso” should be defined as the restrictive condition of criminal convictions.In other words,the function of“proviso”is material interpretation in system of crime constitutions,which makes the system have unlawfulness and social harmfulness.On the basis of the position of“proviso”,behavior with less social harmfulness will not consider as a crime,which is of great significance.This article will be divided into the following sections to elaborate on this.Part Ⅰ,from the justification basis,the origin of the thought and the function of“proviso”,this article elaborates the basis of “proviso” and the drunk driving.Seeking the legitimacy basis of “proviso” from two kinds of theories of retribution penal theory and prevention theory.Furthering the ideological origins of “proviso”,we find that the “proviso” is cohesive mechanism between administrative law and criminal law,which is also the direct way of expression of de minimis non curat lex.Part Ⅱ,there are two main application of “proviso”: standard of extermination and the limits of criminal convictions.This part will sort out the application.By analyzing and comparing the two path choices,we clarify the relationship between constitution of a crime and concept of crime.On this basis,the article discusses the legislative provisions of the “proviso”and the judicial status quo.Part Ⅲ,the author elaborates that “proviso” is the restriction condition of drunk driving behavior,which is the key point.The second part selects “proviso” as the path of the crime limitation of drunk driving.This part elaborates how “proviso” apply in the crime of dangerous driving of drunk driving,from “road”,“drunkenness”,“driving” and “minor” and “less harmful”.The reason why drunk driving is sentenced to a crime is economic development and the numbers of cars.However,it is unscientific that drunk driving is considered as a crime.It will destroy the scientific and logical punishment system.Therefore,it isan effective way to introduce the“proviso” as an act whether it complies with the restriction of criminalization in the process of crime constitution analysis.It will affirms that crime constitution is the concrete criterion and the sole basis.At the same time,it can develop a policy value.