The Provisions Of Proviso In Article 13 Of The Chinese Criminal Law

Article 13 of the Criminal Law,Proviso is a high-profile research problem.In particular,when drunk driving and plagiarism became the focus,Proviso was pushed to the forefront.Around the judicial application of Proviso,the theoretical and judicial practice circles have different opinions.Therefore,this article takes the status quo of judicial application of Proviso as the logical starting point of research,judges and judicial interpretation as the basic parameters,to examine how the current judicial organs control the Proviso.The value connotation and theoretical implication of Proviso has centered on its judicial status quo.In the end,it will be back to the solution of the judicial application.According to the logic of "Judicial Status-Theoretical Implication-Solution",the specific structure and main contents of this paper are as follows:The first chapter explains the judicial status quo in the Proviso.The criminal judgment and judicial interpretation system explores the best form of the judicial status of the Proviso.Therefore,this article is based on judicial interpretation.By examining the judicial interpretation,it can be found that the number of Proviso is only 11,mainly focusing on economic crimes and property crimes.By mining the specific connotation of judicial interpretation,it can be known that the Proviso has imperfectness such as vagueness,ambiguity,normative and boundary.On the other hand,based on the judgment,by examining the criminal judgment,the characteristics of the year,province,case,trial procedure and applicable subject of the Proviso judicial application can be summarized.In essence,the judicial status quo of Proviso has problems such as deviation of applicable functions,ambiguity of systempositioning,abuse,misuse,and normative.Here,it lays the foundation for the composition of this article.The second chapter reveals the content of the Proviso.First of all,based on the discrepancy of the issue that whether the social harmfulness is the nature of the criminal nature,China's Proviso is merely "learning" or "imitation" of the former Soviet criminal law.Secondly,the connotation of Proviso can be deconstructed into four elements: "plot","significantly slight","not harmful" and "not considered to be a crime".The "plot" includes subjective elements,but the sentencing elements should be excluded;"significantly minor" is the specific judgment of the various elements of the "plot";"not harmful" means the generality after consideration of the elements of the "plot" Evaluation,instead of the actual result;"not being considered as a crime" does not constitute a crime in essence,and is equivalent to "not a crime." Thirdly,the "friction" between the four-element theory of flattening and the system of hierarchical crimes casts a controversial image of the Proviso's system.What should be affirmed is that the recognition of the function of Proviso does not obliterate its proper role in the system of crime.Therefore,from the historical evolution,specific connotation of the Proviso,to the system positioning,and the second chapter systematically reveals the content of Proviso.The third chapter explains the judicial application mechanism stipulated in the Proviso.Generally speaking,the judicial application of Proviso should adhere to the three principles.They are holistic application,comprehensive consideration and restrictive discretion.The prophecy specifically includes the following models: First,the model of the constitutive requirement should not be used.However,this model does not play the inherent advantages of the system of class crimes.It is easy to reverse the logical order of “facts and values” and is therefore rejected.Second,the model of the ground-breaking legislative stop causes.Proviso can provide criminal law basis for the victim's promise,decree behavior,legitimate business conduct and other super-legal violations.Third,the responsibility of super-regulation hinders the cause.Similarly,expectation of possibility and illegal understanding may be new to support the value of proviso.Therefore,the latter two models can enrich the specific meaning of proviso and are adopted for judicial practice.