A Study On The Establishment Of The Miscellaneous Provisions In Legal Texts

Legal texts are the summary of the legal practice and generate after the practice relatively. Legal texts need to maintain stability in a certain period and can’t be modified frequently. And the law of social development and the produce of complexity are in accordance with its own law not for man’s will. The stability of the legal texts and uncertainty of social development will inevitably lead to conflict between law and reality. Facing the complicated and changeable social, it is necessary to set out Miscellaneous Provisions in legal texts. And it becomes the best choice. Provisions are limited, but complex things are infinite. So Miscellaneous Provisions should be set out in the legal texts. Otherwise the provisions will be too many to state. From the perspective of law-making, setting out Miscellaneous Provisions is an important approach to reduce the amount of legal texts and provisions.As a legislative technology, Miscellaneous Provisions which has the characteristics of abstract and fuzzy normally use "etc." and "else". It can be divided into two types. This article will conduct the empirical investigation to explore the universality of Miscellaneous Provisions and the causes of it from several aspects, such as the limitations of language, the characteristics of the law, the restriction of legislative technology and the limited cognitive-capabilities of lawmakers. One coin has two sides, Miscellaneous Provisions can consolidate the stability and rigor of law, at the same time, it also produces a series of problems because of its fuzzy, such as going against the certainty of law, appearing uniform in use, even leading to the excessive expansion of judicial power. To find the problems in the legal texts, this article will analyze with the judicial practice in the specific case, not limited in the field of legislation. Miscellaneous Provisions should be refined to restraint drawbacks and then reach the highest utility. This article will combine the practice of example, from the legislative and judicial aspects to explore the way to refine, including refinement of lower-law and legal interpretation. However, the above way only effect after setting, we should focus on the process of setting. It mainly includes the right attitude legislators should hold, the canonical expression of legislative language and the improvement measures of local legislation.The current research on Miscellaneous Provisions is mostly aimed at a specific provision. There are few articles studying it as an item of standardization of the law in the perspective of legislation technology. I hope that this article’s comprehensively implement can arouse the lawmakers’attention to Miscellaneous Provisions. It put forward some reference suggestion for provisions’reasonable setting and may help research on the standardization of law’s structure.