Research On The Establishment And Application Of The Problem Of Miscellaneous Provisions

The contradiction of human social relations and the complexity of class relations prompted the emergence of law,but relative to the development and progress of human society,the limitations and lags of the law make the present law not fully applicable to all social relations at present and in the future,and the two characteristics of the law give birth to the congenital defects of the law,and these defects are naturally reflected in the criminal law.There is no doubt that criminal law is an important basis for convictions and sentencing,the legal loophole of criminal legislation must try their best to avoid,however due to the lack of the statute itself,limitations and other reasons there are limited cognitive ability of legislators and the legislative technology,in the process of criminal legislation in various countries,the criminal code can covers all the crime phenomenon has not yet appeared.Therefore,in order to reduce the crime rate,and thus achieve the purpose of protecting legal interests,formulate perfect written criminal law is very important,so the lawmakers are in the process of criminal legislation has not only use some abstraction,but also with the objectivity,also meet general descriptions,make criminal law shows ambiguity to some degree,for the flexible application of the judicial process and the relevant laws on timely revision and improvement.This is a typical representative of Miscellaneous Provisions.Miscellaneous Provisions reflects the progress of legislation,and because of its flexibility,In the process of practice,there has great maneuverability,many loopholes exist in the legal provisions can be effectively compensated for the Miscellaneous Provisions,so the criminal legislation of our country set up many of the Miscellaneous Provisions.But the general provisions,flexibility and abstraction leads to the meaning of the content of uncertainty,so clear requirements inevitably conflict with the principle of legality,but set up in various countries criminal law and criminal law are still widely used,and will continue to use for a period of time.It is undeniable that the positive role of Miscellaneous Provisions in the criminal legislation and judicial practice,it can expand the coverage and improve the effectiveness of criminal law and criminal law applicable to give a judge's discretion.But because the Miscellaneous Provisions of its own characteristics,the improper establishment and application will inevitably bring a lot of harm to the society.Therefore,when the legislation should set up strict control provisions,perfect the judicial interpretation,to avoid improper application of ultra vires;provisions should take into account the restrictive principle of criminal law and the principle of legality,the maximum value of Miscellaneous Provisions can be played,the fight against crime,the criminal law is more and more to meet the practical needs of the society This article is divided into four parts except the preface and epilogue.The first part mainly introduces the concept of Miscellaneous Provisions and introduces its characteristics and necessity.The Miscellaneous Provisions refers to matters of legislators foreseen or hard to describe in the legislative process will not in general some languages.Miscellaneous Provisions can be divided into single and double Miscellaneous Provisions clause;the conviction and sentencing provisions;the last type Miscellaneous Provisions and analogy inference Miscellaneous Provisions.Miscellaneous Provisions have five features,there are flexibility,objectivity,generality,ambiguity and expansion.Necessity of setting up the Miscellaneous Provisions is a comprehensive assessment of the positive selection of technology,application of criminal legislation is influenced by the cognitive limitations to improve the reality of the criminal justice and criminal policy based on the demand.The second part introduces the problems of Miscellaneous Provisions on the establishment and application.The problems of Miscellaneous Provisions on the establishment:(?)The tension relationship between the improper establishment of Miscellaneous Provisions and the definition of the principle of legality(?)Improper judicial interpretation provisions of Miscellaneous Provisions has the suspicion of violating the legislative power(?)Unreasonable in Double Miscellaneous Provisions.The problems of Miscellaneous Provisions on application:(?)The abuse of Miscellaneous Provisions lead to arbitrary crime and breed judicial corruption(?)Miscellaneous Provisions limit interpretation circles for the weak fuzzy lead to containment.The third part introduces the extraterritorial reference of Miscellaneous Provisions.Including the form of Miscellaneous Provisions in foreign law,the development of Miscellaneous Provisions,the relevant Miscellaneous Provisions and basic in foreign law and reference significance of Miscellaneous Provisions in the foreign law.The fourth part is to set up reasonable terms and applicable Miscellaneous Provisions.First,establish the basic idea of the correct application of Miscellaneous Provisions.Second,the basic path to set up reasonable Miscellaneous provision of the criminal law.Third,the basic way of reasonable application of Miscellaneous Provisions of the criminal law.