The Study Of The Application Of The "Proviso" In Our Country’s Misdemeanor Judicature

The Article 13 the "proviso" of Criminal law stipulates that it bears an important crime crime function in judicial practice.The "proviso" has broader scope for misdemeanors,which are less harmful to society,than felonies.Under the background of the obvious expansion trend of legislation in the misdemeanor era,effectively playing the function of the "proviso"in the misdemeanor judicature has an important role in protecting the misdemeanor crime.The problem is that by observing the application situation of the "proviso" in the judicial adjudication of minor crimes in our country,it is found that there are some problems such as applying the "proviso" instead of using it,not applying the "proviso" and using it with poor reasoning,resulting in confusion and disorder of the "proviso" in the judicial adjudication of minor crimes.There are two reasons for the above problems:first,the system positioning of the "proviso" is not clear,which formalizes the judgment of the constitutive elements of misdemeanors in the process of application;Second,the connotation of the "proviso" itself is not clear,the lack of normative applicable standards,resulting in the occurrence of irrational phenomena such as poor reasoning.In order to solve the above problems,on the one hand,it is necessary to clarify the systematic relationship between the "proviso" and the constitution of crime,and on the premise of substantive explanation of the constitutive elements,"proviso"is positioned as a guiding provision for the crime of misdemeanors.In order to avoid excessively invoking the "proviso",it is necessary to define the types of misdemeanors and limit the scope of invoking the "proviso" to the types of misdemeanors without circumstances.On the other hand,it is necessary to clarify the legal interest direction of "little harm" and the behavior direction of "significant and minor circumstances",so as to embody the applicable standard of the "proviso".At the same time,different ways of the "proviso" reasoning are adopted for the misdemeanors with circumstances and those without circumstances,so as to strengthen the reasoning of judgment.Following the idea of "problem discovery--cause analysis--countermeasure solution",this paper tries to clarity the system positioning of the"proviso",improve the application standard of the "proviso",promote the standard application of the "proviso" in the judicial trial of misdemeanors,and restrict the application of misdemeanors from the judicial level,so as to achieve the legal entry and reasonable discharge of misdemeanors.The structure and main contents of this paper are as follows:The first chapter introduction of the main background of this article--the introduction of the condition of the crime of "the proviso" applicable in minor crimes.Firstly,by clarifying the function of the "proviso" and defining the connotation of misdemeanors,the rationality of applying the "proviso" to misdemeanors is affirmed.Secondly,combined with the current background of misdemeanor legislation,it points out that the expansion trend of misdemeanor legislation obviously leads to the increase in the number of misdemeanors,the lowering of the threshold of crime and the expansion of the crime circle,and demonstrates the necessity of applying the "proviso" to misdemeanors.Finally,based on the acquittal in the judicial practice,combing out the misdemeanors with a higher proportion of crimes,and found that the"proviso" has become the main basis of our country’s misdemeanors,further corroborating the rationality and necessity of our applicable the "proviso" crime.The second chapter analyzes the specific problems of the "proviso" in the judicial adjudication of misdemeanors.According to the first chapter,the "proviso" has become the main basis of misdemeanor crime,if it can be standardized and applied,it can guarantee the smooth crime of misdemeanor crime to a certain extent.However,through the analysis of the application of the "proviso" in the judicial adjudication of misdemeanors,it is found that there are some problems in the application of the "proviso" rather than using,not applying the"proviso",and poor reasoning in the application process.It is characterized by the wrong use of the "proviso" when it is not consistent with the "significant minor harmn",the misuse of the"proviso" when it is not consistent with the elements of the crime,and the poor reasoning in the application of the "proviso"in the crime,resulting in chaos and disorder that the "proviso"is applicable in the judicial trial of minor crime in our country.The third chapter analyzes the reasons of the application of the "proviso" in the misdemeanor judicature.There are two reasons for many problems arising from the application of the "proviso":first,the system positioning of the "proviso" is not clear,which formalizes the judgment of the constitutive elements of misdemeanors in the process of application;Second,the connotation of the "proviso" itself is not clear,the lack of normative applicable standards,resulting in the occurrence of irrational phenomena such as poor reasoning.The former mainly involves the legitimacy and theoretical basis of the application of the "proviso" in judicial practice,while the latter is how to accurately understand and apply the vague expression of the "proviso".In short,the main cause of the problem is the unclear way to apply the"proviso",and how to understand the "proviso" itself and how to apply the norm.The fourth chapter,in view of the "proviso" in the application of misdemeanor judicature suggestions.Based on the analysis of specific problems and causes,the solutions are put forward respectively from two aspects:the system positioning of the "proviso" and the applicable standard of the "proviso".On the one hand,it clarifies the systematic relationship between the "proviso" and the constitution of crime,and positions the "proviso" as a guideline for misdemeanor crime under the premise of substantive explanation of the constitutive elements.In order to avoid excessive reliance on the "proviso",it is necessary to define the types of misdemeanors and limit the scope of invoking the "proviso" to "non-circumstance type" misdemeanors.On the other hand,the legal interest direction of "little harm" and the behavior direction of "significant and minor circumstances" should be clarified,and the applicable standard of the "proviso" should be perfected.At the same time,different ways of the "proviso" reasoning are adopted for the misdemeanors with circumstances and those without circumstances,so as to strengthen the reasoning of judgment.