Research On The Application Of The37~th Clause Of Criminal Law

In judicial practice, the actor does not have a statutory exempted from criminalpunishment for the court, directly applicable to Article thirty-seventh of the criminallaw act may be exempted from criminal punishment occur, especially the duty crimecases are more common. In particular, is directly applicable and has not beenreported nuclear program, become the differences between courts and procuratoratesfor many years has not been effectively resolved.In the criminal law theory circle of our country, there is also the articlethirty-seventh of the criminal law is independent of the causes of disputes fromcriminal punishment, there are two viewpoints. This paper supports the affirmativetheory, based on negative rebut the argument of the point of view of the affirmationof arguments.From the object of criminal punishment of crime are minor and do not need tobe punished by criminal punishment, for really need education correction offendersmust not abuse from punishment. An effective solution to this problem related to theauthority of law, related to the legal belief of people, whether to follow thepunishment suitable principle, so the significance. How to solve the judicial practicein the application of free of penalty to "identity" problem? How the legal constraintdiscretion judges apply article thirty-seventh of the criminal law? How the legalconstraint discretion judges apply article thirty-seventh of the criminal law? Applyfrom criminal punishment of "minor crimes","need not be sentenced to apunishment" how to identify? These and from criminal punishment laws that relatedto the correct application of article thirty-seventh of the criminal law, so it isnecessary to do some research, in order to obtain the more in-depth study.In this paper, a total of three parts:The first part is the introduction, mainly introduced the existing problems aboutcriminal law thirty-seventh, the judicial practice of existence and the theory dispute,the significance and other aspects; The second part is the court has no power to do not have the statutoryconditions thirty-seventh, first analyzes concepts of article thirty-seventh of thecriminal law, including "slight crime","need not be sentenced to a punishment","from criminal punishment" accurate positioning; the relationship between theanalysis of criminal law and the other thirty-seventh from criminal punishment;finally analyze whether the court can not stipulated in specific provisions ofpunishment and independent of the applications for thirty-seventh? This is the keypart of criminal law theory, there are two viewpoints, this paper supports theaffirmative theory, elaborates the reason part includes reasons to refute said andadded that reason;The third part is limited to the scope of application, this part is the key part ofthis paper, including the necessity and penalty principle applicable to criminalpunishment, mainly discusses how to apply article thirty-seventh of the criminal law,how to determine the necessity for the punishment of penalty, how to limit thediscretion of punishment according to the disposing principle of judicial personnelapplicable criminal law thirty-seventh strip.