On The Judicial Application Of Miscellaneous Provisions In China Criminal Law

The law is formulated to deal with social relations deeply rooted in social life.Since everything is constantly changing,social relations are also changeable.Therefore,it is impossible to completely cover the current and future social relations within the regulation of the law.Because of this,there are inherent limitations in the law,and criminal law is no exception.The subjective cognitive ability of the legislator,the congenital defects of the statute law and the limited legislation technology have made it difficult for the criminal law to include all crimes.The criminal law shoulders the heavy burden of cracking down on criminals and protecting legal interests.Therefore,every country is doing its best to improve the criminal law network and intercepting crimes.The creation of miscellaneous provisions is a manifestation of the legislator's efforts in improving the criminal law network during the criminal legislation process.Social development is changing with each passing day,and crimes of various forms and means have emerged in the process of rapid economic growth.In recent years,some misjudged cases have emerged in criminal trials.In addition to other problems in the judicial practice,these misjudged cases are also caused by insufficient understanding and analysis of criminal law provisions.Therefore,a detailed analysis and full comprehension of the provisions in the criminal law is one of the ways to solve the problem,of which the interpretation of the miscellaneous provisions naturally comes in the first place.In the criminal law,miscellaneous provisions refer to the generalized provisions generated by the legislators with words that have abstract summary functions such as"etc." and "other" to block or intercept the loopholes caused by insufficient enumeration and prediction made by provisions of the criminal law.The value of miscellaneous provisions is presented in two aspects.In terms of legislation,it helps improve the criminal law network and crack down on crimes so as to protect legal interests and human rights.In addition,it keeps the criminal law relatively stable without lacking proper flexibility,which enhances the adaptability of criminal law.When it comes to the judiciary,it is conducive to safeguarding the judge's discretion,and cases in judicial practice can be reasonably judged to guarantee individual justice.Even so,the application of miscellaneous provisions still encounters problems in judicial operations:The relevant judicial interpretations and case judges improperly expand the scope of application when interpreting miscellaneous provisions,and added the content that should not have been covered by specific miscellaneous provisions,leading to the so-called "pocket crimes" in judicial practice,which violates the principle of explicitness in criminal law,infringes upon the legislative power and impairs the protection of human rights.The above dilemma is mainly caused by the applicator's non-standard interpretation of the miscellaneous provisions,which stems from the applicator's disregard of the interpretation concept,interpretation standards and interpretation rules of miscellaneous provisions.Therefore,to improve the judicial application of miscellaneous provisions,the idea of explaining miscellaneous provisions should be established first in accordance with the modest and restrained principle of the criminal law.The restrained should develop a clear understanding of interpretation rules of miscellaneous provisions,be good at applying similar interpretation rules and rules of clarity.Moreover,the guiding role of the case guidance system should also be brought into full play.