The Application Of Provisional Document Of Article 13 Of Criminal Law In Pickpocket Theft

"Amendment VIII to the Criminal Law" has made a major amendment to the crime of theft stipulated in article 264 of the Criminal Law,and has included pickpocketing as an independent type of conviction in the scope of regulation of the crime of theft.To a certain extent,the amendment has improved the setting structure of the norms of criminal punishment,and changed the problem of "severe but not strict" in the provisions of individual crimes in the criminal law.However,due to the lack of clarity and specificity in the provisions of pickpocketing,there are different standards of understanding and application of pickpocketing in judicial practice,and there is a phenomenon of different sentences in the same case,which also leads to the controversy of the criminal theory circle about the crime of pickpocketing and how to use the proviso of article 13 of the criminal law to commit a reasonable offence.In order to solve this problem,this paper tries to solve the dilemma of pickpocketing by understanding the current situation of pickpocketing cases in judicial practice,putting forward the problems,combing the disputes and trying to solve the crime of pickpocketing.Combining the empirical research with the theory of criminal law,the applicable countermeasures of the proviso of article 13 of criminal law in the crime of pickpocketing is probed into in the paper,so as to get rid of the dilemma of the crime of pickpocketing being misplaced in judicial practice.This paper is divided into four parts:The first part reveals the disorderly situation of pickpocketing cases in reality by combing the cases of judicial practice,and puts forward the problems existing in the judicial practice and the different opinions in the theory of criminal law and gives a brief explanation of the reasons for the different claims.In order to make use of article 13 of the criminal law but to regulate the application of the method of pickpocketing,it is first necessary to find the root of the problem through the trial of the real case and provide the support for further solving the problemIn the second part,by combing the dispute of the relation between “proviso" of article 13 of criminal law and the sub-provisions of criminal law,the controversy about the rationality of applying "proviso" to the present is discussed: "positive theory" and "negative theory" are discussed,affirming the applicable value of the "proviso" of article 13 of criminal law.On the premise of affirming the crime of "proviso",the two applicable paths-the theory of formal constituent elements and the theory of rejection constitutive elements are introduced in this paper.In combination with the effective judgments of 128 proviso cited in judicial practice,this paper analyzes the positioning of proviso in the criminal case,the reasonableness of the formal constitutive elements and the shortcomings of the exclusion of the constitutive elements.Furthermore,it affirms the value and rationality of the "proviso" of article 13 of criminal law as a negative constituent element,and determines the orientation of "proviso" of article 13 of criminal law in individual cases.In the third part,it analyzes and comments on some disputes,then probes into the limit of the amount of pickpocketing,"public place","taking with you" and other relevant restriction conditions,and clarifies the basic concept of pickpocketing.Combined with the relationship between the position of property and the victim in 540 valid judgments,this paper analyzes and defines the above related factors,unifies the understanding of the theory of relevant elements of pickpocketing,and provides guidance for judicial practice in dealing with pickpocketing cases,alleviating the phenomenon of judicial subjective arbitrary decision.By expounding the relationship between the "proviso" and the crime of pickpocketing,based on four aspects,such as,apologies in accordance with the criminal law,narrowing the criminal circle,balancing reason with jurisprudence and pursuing substantive justice,this paper discusses the rationality of the provisions of "proviso" and the legislative spirit of "proviso",which accords with the essence of the principle of legality of crime and punishment,and builds a reasonable and applicable bridge between "proviso" and the crime of pickpocketing.In the fourth part,by the empirical study in the third part,sorting out the circumstances of article 13 "proviso" in the case,it's to make an analysis of the unreasonable reasons for applying article 13 "proviso" of the criminal law to commit a crim and in the way of analogy,it can be concluded that the "proviso" cannot be applied in the case of pickpocketing.In addition,the connotation of "proviso" in the "plot","significantly slight" not much harm "is reasonably limited,finally returned to the first part of the practical case,combined with the author's grasp of the system positioning of proviso in pickpocketing,the author tries to solve the trial chaos in reality reasonably,and puts forward some suggestions on the content of the elements of crime quantity under the regulation of "proviso" in order to accurately grasp the crime mechanism of article 13 "proviso" in the substantive interpretation of the constituent elements of pickpocketing.