Research On Judicial Application Of "Proviso" In Article 13 In Chinese Criminal Law

Article 13 in Chinese criminal law is generally be considered as the concept of law.The second half of the provision is generally called "but" provision in the criminal law theory.On the comprehension and application of the proviso in Article 13 in Chinese criminal law have always been controversial.After deepening the thinking and research on the provision,there are still a lot of problems with conflicting views.Faced with this situation,the author will show the present judicial application situation of the “proviso”as a breakthrough point,on the basis to clear the meaning and value implication of the proviso,and then clear the relationship between the “proviso” and crime concept,criminal constitution.After the elaboration of the theoretical question,the author will look back the controversial issues which come from the judicial application of the “proviso”,that is the applicable subject,applicable conditions and scope of application of the proviso,to lay the foundation for the application of specific charges.The "misuse" and "abuse" problems must be avoided in the specific application process of “but” provision.In order to prevent vague discussion,the author will take individual charges as the analysis model,and put forward suggestions for standardized application of “but” provision.The first part of this article is an overview of the Article 13 in Chinese criminal law.The proviso is full of controversy in theory,but in practice it is not be put aside.So the author will take the collection of 180 cases to show the present judicial application of the “proviso”,on this account to discuss the “proviso”.The proviso seems only a simple sentence that say “but the plot is obviously minor and the harm is not great,it is not to be deemed as crime”,but its connotation should not be brushed lightly.It should be discussed from three aspects.The "plot" in the "proviso" refers to the circumstances of the social harm degree,such as the method,the means,the time,the place,the motive of the perpetrator,the purpose and the consistent performance,which affect the degree of social harm except the objective damage result."Obviously minor" is the judge of the specific facts,but also because of this,it is necessary to strengthen the quantitative description and objective identification of the the "Obviously minor",in order to solve the "Obviously minor" content of fuzziness and uncertainty evaluation of arbitrariness and subjectivity."Harm is not great" and "the plot is very slight" is a parallel relationship,the two must be at the same time be identified as "not deemed to be as crime".The essential meaning of "Does not think it is a crime," is that not a crime,and can not be understood as behavior constitutes a crime is not a crime,the two are very different.Although the "proviso" provisions are always controversial,but so far the criminal law provisions are still not deleted or modified,then it is necessary from the "proviso" implied by the value of the start,and then play its positive significance and positive value,.The second part is about the theoretical contention of the "proviso".The theory of criminal law can only prominent its value by combining with judicial practice.Accordingly,question of reality need to be solved by the theory of criminal law.This part will analyze several major disputes of the “proviso” in theory.The "proviso" of the theoretical dispute mainly focus on three aspects.The first is the relationship between the "proviso" and the concept of crime.The "proviso" provisions are an important and integral part of the concept of crime and are inseparable.In other words,the concept of crime in our criminal law should be included all the contents of article 13 of the criminal law,not only includes the proviso before the content,we should not artificially cut apart the contents of the concept of crime.Second,we must correctly understand the relationship between the "proviso" and the constitution of the crime."Proviso" provides a function to limit the criminal circle,which is our theoretical and practical community consensus.But for how to use the "proviso" to restrict crimes,there have been two different views and practices,they can be referred to as "the standard of remove crime" and "criminal limit conditions ".The last is to analyze whether the proviso is feasible in judicial practice.The doubts about the application of justice to the proviso are mainly focused on the fact that the judiciary exercises the right of recognition to cause the risk of engaging in legislative power and the expansion of the discretionary power.These two doubts are not inflexible but can not deny the the applicable feasibility in judicial practice.The focus should be on how to standardize the application of the "proviso" provisions,such as the introduction of judicial interpretation or guiding case by Supreme Court,so as to solve ill-defined due to the "proviso" are not clear,and can effectively limit the judicial discretion to expand.The third part is to explain the controversial issues which come from the judicial application process of the “proviso”,it is to pave the way for next part.The main issues include the applicable subject,applicable conditions and applicable scope of the "proviso".Although the author's research focus on the court's jurisprudence,but no doubt from the investigating organ to the procuratorial organ and then to the judicial organ can be applied in the procedure of the "proviso" s.Since there is no specific norms for application of the "proviso",so can not be denied in the application are arbitrariness.It must be applicable to the limited conditions,prevent the unlimited expansion of this arbitrariness.The applicable conditions can be summarized in three points:First,the defendant's conduct is covered by the concept of specific crime;Second,Judgment of the defendant constitutes a serious departure from the general sense of responsibility;Third,there is no other exclusion of criminal reasons.The scope of the "proviso" application has always been divided,if the circumstance crime,crime of amount,and the abstract potential damage offense can be applied to the specific case of judgments have a crucial significance.The fourth part is the specific application of the "proviso" in judicial practice.From the judgment documents collected by the author,we can see that there are still many problems of the “proviso” in the specific application process.First,as a defense reason is unclear and inconsistent.,so can not fight for the greatest interests of the defendant;Second,the judge referee reason lack of reasoning process,which is now a common problem of the referee instruments,but in the case of crime and non-crime case,this defect should be avoided.The third is the “proviso” of misuse and abuse."misuse" means that the act should have been guilty but should not be based on the proviso,"Abuse" means that the act should not be guilty,but still based on the “proviso”.These three typical problems must be addressed and resolved,otherwise the "proviso" provisions in the specific application will be contradictory.This paper intends to use high-frequent charge as the sample of analysis to explore the circumstances under which the "proviso" can be applied.Charges including the crime of dangerous driving,the intentional assault,the Crime of Unlawful intrusion into Residence,the crime of disrupting public service,Article 280,the crime of affray.Through the logical and empirical analysis of these charges apply to the "proviso" of the situation,to ensure the system of criminal law keep integrity,unity and its judicial application's coordination,fairness and justice.