On Miscellaneous Provisions In The Criminal Law

Legislation is for the sake of the complex human social relations. However, human society is so intricate and infinitely changing that no legislation can cover all aspects of the social relations whether of today or of the future, hence rendering all legislation inherently deficient. Such deficiencies have clear manifestation in the criminal law as well. Criminal legislation of each country is trying to avoid loopholes in their laws. Nonetheless, criminal legislation of all nations still fails to comprehend all aspects of crimes due to the inherent deficiency of statutory laws, the limited cognitive ability of legislators, and the technical constraints on lawmaking. As a result, legislators have resorted to abstract and generic textual in their course of criminal legislation so as to achieve more comprehensive net of justice, higher efficacy in crime interception, and greater protection of people’s legal rights. Such representation tends to bring to an extent a sense of ambiguity to the criminal legislation, which facilitates flexible judicial practice and helps the future sum supplementation and improvement to the relevant laws. Miscellaneous Provisions are typical representative of this phenomenon.In addition to the introduction and conclusion, this paper is divided into five sections including an overview of the Miscellaneous Provisions, the analysis of and future improvement on the legislation and judicial application of Miscellaneous Provisions.The overview of the Miscellaneous Provisions discusses concept of the provisions and their types, and provides a macro point of the Miscellaneous Provisions to facilitate an overall understanding of the same.The second section involves analysis of legislation of Miscellaneous Provisions. In this section, the author utilizes several charts to reveal important details of the criminal law and analyzed existing issues in China’s criminal laws in relation to the Miscellaneous Provisions. This section also further explores from a legislative point of view the necessity of Miscellaneous Provisions due to its practical application and theoretical implications.The third section analyzes the judicial application of the Miscellaneous Provisions by looking at the existing issues so far as well as future ways to adjust the application. Improper judicial application of the provisions may lead to judicial corruption, excess of authority, barriers in law enforcement, causing unwanted disputes and other issues, and even to some extent, hindering the progress of the rule of law. Hence we should adhere to the lawful convictions for crimes, correct interpretation, and focus more on the protection of human rights.Section four places its emphasis on the future improvement of the legislation of the Miscellaneous Provisions. Fact remains that the Miscellaneous Provisions shall continue to survive in our Criminal laws. Hence legislators should improve on the provisions so as to maximize its value in its contribution to the socialist rule of law. In this section, the author provides his insight on methods to improve on Miscellaneous Provisions from four aspects of ambiguity reduction, adoption of foreign practice, improvement on legislators’ ability, and addition of Amendments to the Criminal Law.The fifth section involves the improvement on judicial application of the Miscellaneous Provisions. The current issues in the application of Miscellaneous Provisions call for improvement on their judicial application. The author explains in this section his views on how to improve judicial application of the Provisions by increasing criminal law science, facilitating rational use of judicial discretion, and utilizing the leading influences of exemplary cases.The existence of Miscellaneous Provisions is inevitable as well as practical due to constraints in current social circumstances. As such, criticism does not help, instead we shall seek ways give full play its practical utility and try to strike a balance in case of conflict between the principles of lawful conviction so as to achieve greater role of Miscellaneous Provisions in the construction of a modern socialist rule of law services.