The Legislative Design Of "proviso Of Criminal Law"

Provisos, connected with the clause "provided that", are in the provisions, which are concluding two distinct meanings or more. In the other words,"provided that" is the most important characteristic of provisos. There are several opinions about the nature of provisos in the law science community. The prevailing atmosphere is Professor Zhouwangsheng’s. He regards the proviso as the legal norm, which is confused with legal rules. The legal norm in Professor Zhou’s essays, consisting of the premise, the behavioral model and the legal consequence, does not conclude the principle of legality and the legal concept. So, he neglects the provisos in legal principles and concepts. In my view, the provisos are not legal norms but special sentence patterns.Provisos in criminal law distribute different articles, such as Article13and20. Different provisos play distinct parts, such as judging the area of application, the concrete application of punishments, objectively emphasizing and so on.The expression of articles in our country’s statute affects citizens’rights and obligations, especially the criminal law, which restrains liberty and property safety. The provisos are formed gradually in drafts of the criminal law. In a word, there are several principles in the establishment of provisos. On the one hand, it should be concise, popular and normative formally, and have substance meaning with a view to punishing crime and protecting people. On the another hand, the division of provisos is involved the partition of articles. An article only contains one meaning in general. When an article has to express more, it may take form of provisos or sections, which defends on the structural of the complex sentences. While it is disjunctive with the word "provided that", it should be a proviso, otherwise they are common sections. Punctuations in these articles should be use commas before provisos, which have formed customs in repeated drafts.According to design rules, the use of some provisos like Article13and Article17, in our criminal law is proper, while some are improper. There is no necessity to use provisos. For example, Article7, Article8and Article17. The main seasons of the anomie of provisos are that the legislature body does not open the legislative process, that the public do not participate in it and that scholars and legislators pay less attention to it. In order to reduce the anomie and regulate the use of provisos, the legislature should share all the information about the law that is to be made, and advocate public participation. In addition, further study on the regulation of the use of provisos is required.