| For the purpose to maintain strict criminal justice,criminal lawmakers in our country apply amounts of "other" or "etc." in the description of crimes to avoid incomplete enumeration,which are known as miscellaneous provisions.Apparently,legislators cannot regulate all behaviors because of boundedness of legislation technology and complexity of social life.Therefore,the imperfection of legislation not only negatively influences the stability of criminal law,but also defects the function of criminal law in the way of maintaining the public safety.As a consequence,it is inevitable but also reasonable to establish a certain number of miscellaneous provisions in criminal law.The miscellaneous provisions play a significant role to unify the criminal law as well as to balance the legal interests and the protection of freedom.However,in recent years,the interpretation of criminal miscellaneous provisions are unrestrained,which constitutes a great threat to the protection of human rights.For instance,in the crime of illegal business operation,the “other illegal business activities” have been utilized to punish all irregular business as a consequence of the expansion of more than 14 judicial interpretations and various judgments of local courts.It has became the basic provisions of the crime of disrupting the order of the socialist market economy in chapter 3 of the criminal law,the crime of infringing upon the citizen's personal rights and democratic rights in chapter 4,the crime of obstructing the social management order in chapter 6.For another example,in order to maintain social order,any act that may threaten public security will be identified as the crime of endangering public security with other dangerous means.This appears not only when there is lack of certain charges,but also to avoid lighter sentencing even if a charge may apply.Moreover,as the behavior to disrupt social production with methods of nondestructive property heavily increases,especially appearance of behaviors like "malicious praise" and "reverse speculation" on the internet,any method of damaging production and operation would be charged with the crime of damaging production and operation in practice,rather than restricted by the method of destroying property.The unrestrained expansion of justice is the result of the prevalence of the concept of evil punishment,judicial facilitation,and severe-penalty doctrine.Unfortunately,the unrestricted use of the miscellaneous provisions is eveidently incompatible with modern rule of law.Undoubtedly,the existence of the miscellaneous provisions in criminal law does not mean it can be arbitrarily interpreted.Pursuant to the principal of legality of Baccaria,the principle of legality has been adopted as the most significant principle of criminal law in any modern countries including China.To a certain extent,there must be a tension between the appliance of the miscellaneous provisions and the principle of legality.On the one hand,the principle of legality not only intents to stipulate the law clearly,but also requires the law itself to be transparent.For this matter,the miscellaneous provisions play a negative impact with the purpose of maintain explicit criminal law.On the other hand,the goal of the principle of legality is designed to limit judicial power and to avoid judicial arbitrary.For its inherent nature,the miscellaneous provisions may be used improperly for judicial discretion,which creates a natural challenge to the principle of legality.Therefore,it is necessary to clarify the positions and principles of the interpretation of the miscellaneous provisions from the perspective of the principle of legality.Criminal law should be strictly interpreted.Similarly,the miscellaneous provisions should also be interpreted precisely.The basic stand of the restrictive interpretation is that the interpretation of miscellaneous provision should be restrained.Meanwhile,as a derivative of the principle of legality,the following four basic principles should be followed,which are constitutionality,the protection of legal interests,proportionate punishment to crimes and cautious punishment.The ejusdem generis rule should be followed as a basic rule in the interpretation of the miscellaneous provisions.This rule is generated from the following four principals,which are the perspective of semantics,the inherent consistency requirements of legal content,universally recognized and customary,and the basic position and principles of interpretation.The ejusdem generis rule indicates that the interpretation of the miscellaneous provisions must follow the clarified items in the legislation.Moreover,it has to maintain the same category and to exclude different types of situations.However,neither the viewpoint of explanation of similar from the text itself nor the explanation from the value of criminal law in current theory are correct.Although the ejusdem generis rule is a unique interpretation rule,it is difficult to provide the necessary "intellectual knowledge" in the understanding of "similar" by itself.As far as the interpretation of criminal law is concerned,semantic interpretation,systematic interpretation,historical interpretation,comparative interpretation and teleological interpretation represent almost all the methods of criminal law interpretation.It has methodological significance for understanding "similar" in the ejusdem generis rule.In other words,the understanding of "similar" should always bond to the five traditional interpretation methods.In the concrete judgment of "similar",five inferior rules can be followed: the rule of text fusion,the rule of the same legal interests,the rule of violating the same quality of legal interests,the rule of exclusion and the rule of proportion.In addition,although jurisprudence is considered as a science,the limited congnition of human being nevertheless restricts the full understanding of legal interpretaion.Therefore,it is still necessary to establish the rule of lenity-pro defendant at unsettled points,as a supplement to the application of the ejusdem generis rule.The ejusdem generis rule can eliminate the unnecessary mistakes in the interpretaion of miscellaneous provisons in criminal law.However,academics usually cagorizes crimes into natural crimes and legal crimes.The former is a crime that is naturally formed in violation of ethics,such as intentional homicide,robbery;the latter is a crime constituted by legal provisions,specifically in violation of administrative laws and regulations,such as the crime of illegal business operation,the crime of organizing examination cheating.Based on the distinctions between natural crimes and legal crimes,the interpretation of the miscellaneous provisions in legal crimes has special characteristics,which requires an establishment of further specific rules.First,the miscellaneous provisions in legal crimes can be applied only if there are establishments in administrative law or regulations.No acts should be regulated by the miscellaneous interpretation if there are lack of criminal responsibilities in administrative law and regulations.Second,the relationship between blank facts about a crime and the interpretation of the miscellaneous provisions in legal crimes must be operated properly.Interpretation of violations of state regulations in the blank facts about a crime must follow article 96 of the criminal law.The preliminary law in the blank facts about a crime should be the norms related to the protection of legal interests of charges.The provisions of the preliminary law in the blank facts about a crime require secondary judgment at the criminal law level.Third,A double-miscellaneous-provision might be created as a result of violation of the preliminary law by legal crime.Therefore,the application of the miscellaneous provisions in criminal law should not be applied in priority. |
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