Research On The Limition About The Application Of Miscellaneous Provisions-Take Economic Crime As An Example

Statutory law has its own natural lag and indecisiveness.Since its promulgation,the Criminal Code has been gradually disconnected from the society.It is hard to enumerate all the criminal acts that should be punished.In response to this difficult problem,the omission clause has been widely applied as a legislative technique to various sectoral laws.Specifically,the criminal law manifests itself as a category of guilt such as "other...","......" among the sub-provisions.The existence of criminal law's comprehensive provisions has its rationality and positive value.On the one hand,it can overcome the lag and undue delay of law,meet the needs of crime prevention and social relations,and on the other hand,can avoid excessive legal changes and realize the criminal law relatively stable.However,at the same time,the existence of the omission clause brings some disadvantages in the application of criminal law,such as the conflict between the vague expression and the principle of the clarity of the criminal law.Judicial discretion is too large and the operating standards are not unified,Breed legislation and judicial laziness and so on.In order to minimize the probability of occurrence of the aforementioned defects and improve the clarity of the criminal law norms,it is necessary that the criminal law should be applied withcaution and even limit the use of omissions.This article intends to study this issue to propose a reasonable and feasible limit to the criminal law.Among them,most economic crimes are administrative prisoners,involving the two-time offenses of pre-law and criminal law,with a large number of general provisions appearing therein.Although the omnibus clause has some positive meanings,the highly generalization of its terms has a great impact on the principle of the clarity of criminal law and has the function of undermining the protection of human rights in criminal law.Specifically,it will lead to loosening the stability of the criminal law,diluting the criminal law property law,the lack of maneuverability,the excessive discretion of judges and the unfavorable influence of judicial indolence.In judicial practice,we should adopt a cautious attitude toward the omissions clause in the Criminal Law,and even limit its use as appropriate.The main purpose of this dissertation is to study the omission clause,explain its existence reason and the drawbacks that exist at the same time,and put forward the limitation plan according to the above drawbacks.Since economic crimes are mostly administrative law,the characteristics of the secondary violation are more obvious.Therefore,this article will take the economic crime as an example to elaborate on the applicable limitations of the omission clause.The value of this study lies in completely explaining the role of omnipotence clauses in both positive and negative aspects of criminal law practice,and drawing reasonable restrictions.For the comprehensive provisions of economic crimes,judicial practice must insist on a kind of cautious restraint attitude,not as a last resort can not be used lightly.During the specific operation,the following methods can be used to limit it.The first is the restriction based on the principle of the secondary law of crimes,that is,the establishment of a criminal act should satisfy two unlawful judgments.The first step is to violate the pre-existing civil law or administrative law and the illegality of the act is serious enough before it can be included in the criminal law The scope ofevaluation.Moreover,it is not only a serious violation of the act of pre-existing law that will become a crime,but also the necessity of applying the criminal law.That is,the front law regulates this and fails to provide any effective means to restore the rights and obligations.Only when all the above conditions are satisfied at the same time can the conditions of economic crimes be covered thoroughly.Second is the restriction based on the interpretation of criminal law.That is to say,when the general norm of the law is to be the actual case handling rule,it should stand on the position of restriction of explanation and try to limit the scope of application of the comprehensive clause of economic crime.Specifically,the various goals of limiting their applicability can be achieved through a variety of interpretation methods such as textual interpretation,homogeneity interpretation,objection interpretation,and correctional interpretation.The structure of this paper is divided into four parts.The first part is an overview of economic crimes.First of all,it defines the connotation and denotation of economic crimes,and points out that in our criminal law,economic crime is the third chapter "disrupting the socialist market economic order";It has the characteristics,and according to its characteristics,illustrates the corresponding disposal methods in judicial practice.The second part is the study of the most basic terms in economic crimes.First,it defines the meaning and characteristics of the omnibus clause and,based on the results obtained,concretely lists all the provisions in Chapter III of the Criminal Law.On this basis,it discusses the necessity and rationality of the omission clause,at the same time,points out its corresponding legislative and judicial malpractice,and clearly limits its applicable basic attitude.In the third part,from the angle of the principle of the second violation of crime,this article puts forward the restriction of the application of the omission clause of economic crime,including the provisions of the pre-law,the violation of the pre-law and the failure of the pre-regulation.In the fourth part,from the angle of legal explanation,this article discusses how to limit the application of the omnibus clause of economic crime in thecourse of case adjudication specifically,including homogeneity explanation,system explanation,objection explanation and purpose explanation.