Study On The Proviso Of Article 13 Of Criminal Law

Through studying and describing about such several problems as content of the proviso, the relationship between proviso and crime concept and that between the proviso and constitutive elements of crime, it is pointed out the proviso emphasizes only acts with certain social harmfulness should be punished by penalty . Behavior with little social harmfulness should be excluded from criminal law. The crime means serious social harmfulness and breaking of law. But complicated actual life always brings trouble to the application of law, it is difficult to judge, through the brief regulation of the clause, whether to form the crime or not. At this situation we need to judge the social harmfulness, namely get back to the social harmfulness standard again.Part of the preface briefly introduces the important meaning and great value of proviso of 13th article in our country's criminal jurisprudence, and summarizes the main dispute that exists on the study of the proviso, combined with the research results of the latest theory and the way of research.Chapter one focuses on the content of the proviso. The plot of one behavior is remarkably slight and not very harmful, then it is not regarded as the crime. Here "not regarded as the crime" refers to having no crime. Our country's current criminal law is affected by the former Soviet Union deeply, and the proviso could find the shade in Russian criminal law in the past. Thought cultural tradition, it is pointed out that to a great extent the proviso is the reflection of "traditional Chinese way of thinking" in legislation.Chapter two explains the relation between the proviso and crime concept. The mixed crime concept has met the demand of the development of China. Article 13 of criminal law stipulates about the general provisions of the crime. So we should insist and recommend the crime concept that is mixed. The proviso emphasizes the essential characteristic of the crime concept—social harmfulness. The proviso is an essential component of the crime concept. Chapter three aims at stating the relation of the proviso and constitutive elements of crime. Through concrete analysis of constitutive elements of crime, it is pointed out the proviso and constitutive elements of crime are not contradictory. The proviso is the minimum regulation of a criminal offence on the social harmfulness amount. We can say this behavior has enough harmfulness if accords with constitutive elements of crime. This kind of understanding is true to a large amount of cases often taking place in daily life. But the limitation of the written law brings challenges to the constitutive elements of crime theory again. At this time, we will get back to social harmfulness judgment again.Chapter four describes the actual application and meaning of the proviso. Though the content of the proviso is fuzzy, never means it can't be held. The proviso can only be then applied. Because of the regulation of the proviso, law can only stipulates those of a serious harmfulness, thus concise clause, benefiting the accurate expression of legislators' intention. We should leave more space for the administration and ethical means to adjust and control the society. Especially in period of transition in the society, when the economic development level is low, we should use penalty carefully.Final part emphasizes the relation of the proviso between crime concept and constitutive elements of crime again. It points out proviso helps to restrain the range of penalty, realize the comprehensive regulation and control of the society through criminal law, administration and ethical means and maintain the whole society with significant harmonious.