Comprehension And Application Of The "Proviso" In Article 13 In Criminal Law Of Our Country

The article 13 in Criminal Law of People's Republic of China is the concept of crime, and the second half of this article is the legislative expression of proviso. Due to the experience of the Soviet Union and the actual situation of domestic considerations, Criminal Law in 1979 stipulated the proviso. Along with the research of the criminal law goes deep, more and more scholars began to question this provision, or even to crusade against it. Of course, as discussed further, there are a lot of voices of the supporters of proviso. Some scholars in favor of maintaining the existing system, others proposed to retain the proviso, but change part of the existing theoretical framework. The views of these scholars are undoubtedly very valuable, and also contributed to the driving force of the writing of this article. In my opinion, some views of the accusations are based on inappropriate interpretation of the related theories. Therefore, the purposes of this article is in the premise of trying not to disrupt the existing legislative framework and theoretical, to establish a reasonable interpretation of the understanding and application of the proviso. Paper is divided into three parts:The first part is about the local values of proviso in the Criminal Code. Although there are many scholars questioned the value of the proviso, including: it conflict with the concept of crime; it shock the legislative power; and the ambiguity of proviso led to guilty of impunity and expansion of the scope of penalties. Therefore, in the first part of this paper, Through description of the value of the proviso, the author attempt to prove its'existence in our country is the result of the choice of history and reality, even if it bring some understanding difficulties, but its value can not be ignored. In this part, the discussion of the value of proviso, also provide a premise for the author put forward the idea on understanding and application of the proviso - that all attempts of this article will be meaningful.The second part of the contents of the book is the understanding of proviso, because of the many scholars deems this is a controversial issue. Such as: the diversity of the understanding of "plot"; the differences on understand the "harm"; it conflict with the austerity of criminal law; it conflict with the criminal richtswitrig, and so on. In addition, in order to establish a reasonable interpretation of the proviso, this article also bound to clearly define this problem. Therefore, this part mainly involves the following two aspects: the content of the proviso, and the relationship between article 13 and the proviso.Finally, after the second part, it took to the discussion about the application of the proviso. Similarly, the difficulty of the application is also an important reason for the academics opposed it. Such as, the confusion of the relationship between the proviso and quantitative factors in criminal law; the ambiguity of proviso led to guilty of impunity and expansion of the scope of penalties, and so on. But the paper argues that, more or less, these difficulties are "created" by the inappropriate interpretation. This section will focus on the application relationship between the proviso and the specific provisions of Criminal Law, the ways of thinking about the application of the proviso, and the ambiguity of the proviso. The author is trying clear the way for practical applications through solve these puzzles by detailed analysis.