Research On The System Orientation And Judicial Application Of The "Subsistence" Clause In Concept Of Crime In The Theory Of Hierarchy

The proviso in Article 13 of Criminal Law of the People's Republic of China is expressed as follows: “However,if the circumstances are obviously minor and the harm done is not serious,the act shall not be considered a crime.” In judicial practice,since the “first national euthanasia case” decided by the Hanzhong Municipal People's Court of Shanxi Province,the study of proviso in Article 13 of criminal law(hereinafter referred to as “ the proviso”)becomes a hot topic in academic circles,and then scholars continue to issue the question “Are pickpocketings all criminalized?” or “Are drunk drivings all criminalized?” “ Since the film “Dying to Survive” was released in China,the People's Procuratorate of Lujiang City,Hunan Province made a decision on non-prosecution about the prototype Lu Yong case of “Dying to Survive” under the proviso,and this makes the research of proviso to a new height.The main body of this paper is divided into four parts.The first part is to explain the semantic analysis of the proviso,through the semantic analysis of the concepts of “the circumstances are significantly minor”,“the harm is not great” and “it is not considered as a crime”.Next,the functions of the proviso are “declaration theory”,“guilty theory” and “limited guilty theory”.Then,the author continues to discuss the controversial areas in the academic circles,and then draws the viewpoint of this paper.Finally,in response to academic criticism,the significance of the proviso is demonstrated,including that the application of the proviso is the requirement of the statutory principle of crime,and is the requirement of the principle of modesty in criminal law,and is the premise of substantive law in the application of criminal procedure law.The second part focuses on the most controversial issue in the academic community that is the positioning of the proviso.This paper enumerates some academic viewpoints,such as “traditional school”,“four elements reformist school”,“stratum theory reformist school”,“system going out crime school”,and puts forward the viewpoint of this paper.The application of proviso should insist that the constitution of crime is the criterion to identify the uniqueness of crime,and make a comparison between “traditional school” and “stratum theory reform school” in order to seek the orientation of the proviso.Then it seeks the theoretical support of foreign countries for the proviso and draws lessons from the theory of punishable illegality.From the background of the emergence of the theory of punishable illegality,the development of the theory,and its relationship with the proviso,we can see that it is similar to the development of the proviso in our country.Finally,starting from the four elements and the three-tier system,this paper analyzes the system orientation of the proviso.In the analysis method of the four elements,the proviso is put in the four elements,and the proviso is positioned under the standard of insisting on the unification of criminal identification through the method of compromise.This paper puts forward the viewpoint of this article and adopts the compromise theory by placing the proviso in the proper class,illegality class and responsibility of constitutive elements.Then it describes the problems arising from the practice of the proviso,and analyzes the application of the proviso through “the first euthanasia case”,the prototype Lu Yong case of “Dying to Survive”.These are more explicit about the positive role of the proviso in the application of individual cases.The last part of this paper is the perfection of the proviso.