Study On "Exemption From Criminal Punishment" Provision Of Article 37 Of The Criminal Law

"There must be exceptions in principle." Under the background of the "criminal mitigation" trend and the criminal policy of "tempering justice with mercy",the"exemption from criminal punishment" provision of Article 37 of the Criminal Law and the other 16 statutory depenalization provisions of the Criminal Law constitute an exception in the field of criminal law based on the principle of“conviction and sentence".However,as to whether Article 37 of the Criminal Law can be regarded as an independent legal basis to exempt from criminal punishment and how to grasp the applicable standards of the "exemption from criminal punishment" provision of Article 37 of the Criminal Law,there are still controversies among legists and judicial departments.This also indicates that the "exemption from criminal punishment"provision of Article 37 of the Criminal Law needs further study in order to unify understanding and correctly guide judicial practice.In accordance with the logic of asking questions,analyzing problems and solving problems,this paper divides the text into the following three chapters:The first chapter summarizes the theoretical disputes in the "exemption from criminal punishment" provision of Article 37 of the Criminal Law,and the current state of confusion in judicial application.As to whether Article 37 of the Criminal Law can be used as an independent legal basis for "exemption from criminal punishment",there are theoretically two different academic views:"non-independent exemption basis" and "independent exemption basis".The "non-independent exemption basis" is represented by Professor Zhang Mingkai,who explicitly opposes the positioning of Article 37 as an independent legal basis for exempting from criminal punishment.He believes that it shouldn't be directly used as the legal basis for exemption.The "independent exemption basis" is represented by Professor Su Huiyu,Professor He Bingsong and Professor Zhao Bingzhi.On the whole,they believe that it can be directly exempted from criminal punishment by using Article 37 of the Criminal Law as the legal basis.In the judicial practice,whether from the spirit of judicial interpretation or the result of judicial judgment,the position of judicial departments holding the "independent exemption basis" is very clear.However,through the study of 321 criminal second-instance judgments from 2009 to 2019,the author found that the judicial department's understanding of the applicable conditions of the "exemption from criminal punishment" provision of Article 37 of the Criminal Law is extremely inconsistent,and even several second instances,based on the Criminal Law.Article 37,directly changed first instance judgment with heavy punishment to exemption from criminal punishment without reasonable explanations.At the same time,in the judgment documents,confusing uses of the "exemption from criminal punishment" in Article 37 of the Criminal Law and the "non-criminal punishment" in Article 17,paragraph 4 of the Criminal Law,and "not indicted in the Criminal Law" was not uncommon.The status quo of these chaotic judicial applications should be corrected.The second chapter demonstrates the independent status of the "exemption from criminal punishment" provision of Article 37 of the Criminal Law.In response to the many reasons put forward by the "non-independent exemption basis",this article discusses it one by one.On this basis,it clarifies the endorsement position on the"independent exemption basis" side,and demonstrates it from the perspective of the scope of application of the law,the internal and external relations between the articles,and the sound criminal law operation mechanism.The third chapter aims to solve the problem of how to correctly apply the"exemption from criminal punishment" provision of Article 37 of the Criminal Law in judicial practice,that is,what is the meaning of "slight crime" and "no need to impose penalty" and whether they are both the conditions of "exemption from criminal punishment".This paper argues that the essence of "exemption from criminal punishment" is the lack of "need to be punished",while the judgment of "need to be punished" should adhere to the "combinationism" position.Only the minor responsibility as well as slight crime-prevention purposes can be regarded as "no need to be punished".Therefore,only when the conditions that "slight crime" and "no need to impose penalty" can be judicial determined,criminal punishment can be exempted on the legal basis of the "exemption from criminal punishment" provision of Article 37 of the Criminal Law.moreover,the paper puts forward relatively clear and specific judgment standards for judicial determination to "slight crime" and "no need to impose penalty".