The Research Of The "Proviso"

The ‘proviso’ is an organic part of the concept of crime in China,which embodies the function of human rights protection of criminal law,embodies the modesty and restraint of contemporary criminal law,and carries important functions of committing crimes.On the basis of entity of the criminal law,to research the mechanism of ‘proviso’provisions in the criminal justice in our country,and to explore how to carry out innocence from substantive criminal law,remove obstacles and broaden the path for the application of ‘proviso ’regulation,reverse the dangerous tendency ‘attach importance to entering a crime,despise leaving a crime’,is an important response to the requirements of the development of China’s criminal law.And it is also in response to the current trend of building a country under the rule of law under the background of human rights human rights safeguard of adaptation.This paper studies‘Proviso’from four aspects: the current judicial situation of‘proviso’ regulation,examines the academic dispute of the judicalization of ‘proviso’,considers the deconstruction of the academic theory of the function and system positioning of ‘proviso’ regulation,and the perfection of the judicial mode of ‘proviso’,aiming to find out problems and obstacles in the application of ‘proviso’,and provide theoretical support and countermeasures for a better application of provisos in China’s criminal justice practice.The first part: to examine judicial status of ‘proviso’ regulation in judicial practice,to analyze the current low acquittal rate and weak phenomenon and the interpretation of the basic theory system,to put forward the present judicial situation of ‘proviso’,to show the problems and disadvantages of the low mechanism of sin and the unreasonable case quality evaluation mechanism,to reflect the danger hidden behind current judicial state.The second part: to specify academic controversy in the judicial process of‘proviso’ regulation,to study the function and its position in Chinese criminal law system,to put the meaning of not guilty and the combs from sin mechanism in China as the breakthrough point,discusses substantial explanation characteristic behavior evaluation system in our country of ‘proviso’ in detail,to find its function and rationality.This part analyzes the relationship between ‘proviso’ and the concept of crime in China’s criminal law,and confirms that proviso,as an organic part of theconcept of crime,has the regulation function of crime quantity,and is the interpretation and explanation of crime quantity.Clarify the substantive interpretation function of provisos on constitutive elements and its self-consistency in the application of provisos to crime.The third part: to deconstruct the judicial principle of ‘proviso’ theoretically,to elaborate on the basic meaning of ‘proviso’,including the legal language of ‘proviso’,the semantics definition and the value orientation.To analyze the semantics and logic of the ‘minor’ plot,to find the spirit of austerity of criminal law and a legally prescribed punishment behind ‘proviso’,and adaptation of the commuted sentence trend,to explain the meaning of ’proviso’.Comparing the crime quantity regulation function of the proviso with the theory of punishable illegality in German and Japanese criminal law,find the rationality of its quantitative standard in establishing crime,to analyze the criminal policy function of ‘proviso’,and points out that the principle of ‘proviso’application lies in its concrete embodiment of the criminal policy of tempering justice with mercy.The fourth part: to explain the application principle of ‘proviso’ in judicial practice,to construct a new judicial model of ‘proviso’,including ‘proviso’ applicable principle and ‘proviso’ applicable path analysis.First of all,clarify the specific scope of application of ‘proviso’ and its control over the specific provisions of criminal law;to study the contradiction between ‘proviso’ and the constitution of crime stipulated in the traditional theory of China criminal law,and the applicable path of ‘proviso’ is to be a supplement to the constitution of crime and a way of substantive interpretation,bearing the substantive interpretation function of crime.To propose that to establish a relatively open mode of ‘proviso’,make multiple interpretations based on its principle,and strengthen the case guidance system of ‘proviso’ to provide precedent and basis for‘proviso’ to commit crimes,so as to better play the role of ‘proviso’ in judicial practice.The acquittal rate should be removed from the standard system of case quality evaluation,and a more scientific evaluation and evaluation mechanism should be established as soon as possible.