Study On The Miscellaneous Provisions In China Criminal Law

As a kind of the lesgislative technique, the miscellaneous provision is the common phenomenon that exists in every criminal law in the world. To deal with the new type of crime in trasitional China, A large number of miscellaneous provisions exist in1997criminal law,which reason is not only the limitations of the criminal legislation but also the legislator's positive selection based on the criminal policy. As a kind of the legislative technique, the existence of the miscellaneous provisions in criminal law has its rationality and necessity, but recently the limitation of the miscellaneous provisions is being expanded more generally and some of them already have become a "pocket crime", which phenomenon is because of China's judicial interpretation and judge's positive application. So, How to control the limitation of the miscellaneous provisions is burning issue. After defining the concept of the miscellaneous provisions combining with the academic view about it, from the value purport about the principle of legality, the author proves that the reason for the limitation expansion about the miscellaneous provisions is not the conflict between the miscellaneous provisions and the principle of legality but the defect of China's judicial interpretation. Under the realistic condition, the definiteness about the miscellaneous provisions should be realized from the two aspects, which is criminal legislation and criminal justice, in order to achieve the purpose of the balance between the society protection and the human rights protection.Except foreword and conclusions, the thesis consists of the following five chapters:The first chapter is about defining the concept of the miscellaneous provisions. Through carding the mode of expression on "other" in China's criminal law, combining with the academic view about it, the author defines the concept and the feature of the miscellaneous provisions and distinguishes between the miscellaneous provisions and the related cancepts. Combining with the academic view about the classification of it, the author classifies the miscellaneous provisions within the study of it.The second chapter is about demonstrating the rationality and necessity of the miscellaneous provisions in China's criminal law. The unavoidable reality of the miscellaneous provisions' existing in every criminal law in the world proves that the miscellaneous provisions has its reasonable basis and value, so the first section in this chapter, author analyzes its existence basis, which is the limitations of the criminal legislation but also the legislator's positive selection based on the criminal policy, and its real value in criminal legislation and criminal justice. The second section in this chapter, from the value purport about the principle of legality, author proves that the reason for the limitation expansion about the miscellaneous provisions is not the conflict between the miscellaneous provisions and the principle of legality but the defect of China's judicial interpretation, in order to solve other problems on the miscellaneous provisions.The third chapter is author's innovation research point. In order to pursuit the principle of definiteness of criminal norms, author advises that the miscellaneous provisions should be limited the range in China's criminal law. Through carding the miscellaneous provisions in the old and new China's criminal law and its change trend, combining with the key issue issues in revision of criminal law, the author limits the range of the miscellaneous provisions and set forward some suggestions.The fourth chapter is the importance in the article. Author analyzes how to limit the range of the miscellaneous provisions in criminal justice, on the condition that the legislator cut out the number of the miscellaneous provisions in China's criminal law in a short time. Under present circumstances, the reality of the limitation expansion about the miscellaneous provisions in China's judicial practice is not lack of the knowledge and experiences of application on law, but the idea of the principle of legality and the restraining spirit of criminal law, Author advises that the judiciary should interpretate the miscellaneous provisions under the idea of the principle of legality and the restraining spirit of criminal law, the position of the objective interpretation and formal interpretation on the interpretation of the miscellaneous provisions and the correct way, in order to achieve the purpose of the balance between the society protection and the human rights protection, After author analyzed the condition of the flooding and expansion on the interpretation of the criminal law.In The fifth chapter author advises that the judiciary should limit the expansion of the miscellaneous provisions through other ways in the judicial practice. So the first section in this chapter, author analyzes the present situation of the judicial application on the miscellaneous provisions. One of the reason which the miscellaneous provisions is being expanded more generally and some of them already has become a "pocket crime", is the flooding and expansion of China's judicial interpretation, the other reason is judge's positive application. So, for the phenomenon, some scholars suggest that the judge should be given certain discretion, but the advice can't be realized under the present circumstances of the judicial application. The second section in this chapter is about the perfection of the application on the miscellaneous provisions. Author suggests that the miscellaneous provisions should be limited through other ways in the judicial practice, one of the ways is overlapping of the articles of criminal law, another is to improve the judge's quality in the judicial practice, through which the judiciary can control the application of the miscellaneous provisions as far as possible.