The Criminal Law Article 13 But The Book Study

The application of the artical 13th–proviso in Criminal Law of People'sRepublic of China is chaotic , the standard is unbalanced in the judicial practice, thus some scholars advocated not to apply to the provisos, but thauthor of this article think the justice of many cases will certainly be sacrificed if it doesn't be applied. The author researched the law philosophy foundations of the provisos and its value in the current Criminal Law, and analyse the similarities and differences between the proviso and not be crime theory of the Continental Law Legal System criminal law, the preliminarily analyse which way to be adopted not be crime in the proviso in our country judical practice,in order to standard the proviso foe the application. The author thinks the proviso not only assume the value in legislating but also take the positive attitude in the judicature, through locating the systematic position of the 13rd provisos in criminal theory in the Criminal Law of our country, namely it is applied after the traditional crimal constitution theories , when the general justice conflicts with the individual case, the judicature should first protect the the just of the individual case, provide concrete legislating reliefs according to the proviso's stipulation, to avoid the behavior existing special reasons to be damaged.