Study On The Application Of Provisions In Article 13 Of Criminal Law

The "proviso" in Article 13 of the criminal law stipulates the conditions for the entry of criminal law in China,which is an important part of the concept of criminal law in China.In practice,there are many cases in which the "proviso" is applied.However,there is a great controversy about the "proviso" in the theoretical circle,especially after the eight drunk driving in the criminal law amendment,a new round of controversy has arisen.Because there is a great dispute about the "proviso" in the theoretical circle,and because the law is not clear about whether and how to apply the "proviso" directly,the application of the "proviso" is confused and the standards are different.In this context,based on the existing theoretical results,three groups of data are selected to analyze the current situation of "proviso" by empirical analysis.Three groups of data were selected: a grass-roots Procuratorate in Inner Mongolia handled the review and arrest cases and the review and prosecution cases in 2013-2018,as well as selected the judgments applicable to "proviso" in the magic weapon of Peking University through search keywords.Through the data of the first two groups,we can see that in the criminal cases handled by the procuratorate,there is no case where the "proviso" is applicable.However,through careful analysis,it is not the case that the court fails to meet the conditions for the application of the proviso,but refers to the first paragraph of Article 16 of the criminal procedure law,holding that "the circumstances are obviously minor,and the harm is not serious" as a plea of sorry.This approach is inappropriate,because as a procedural law,the criminal procedure law cannot determine the boundary between crime and non crime.Only the criminal law has this function,that is to say,the criminal procedure law must be based on the criminal law.On the other hand,whether the first paragraph of Article 16 of the criminal procedure law provides legal support for the crime of "proviso" directly? If it can be concluded that this paragraph supports the crime of "proviso" of the criminal law,then theoretical disputes can be avoided.Unfortunately,because of the logical loopholes in this article,it is impossible to confirm the situation described in the first paragraph of Article 16 of the criminal procedure law It is the situation described in the proviso.Because of the small amount of data in the first two groups and the small proportion of cases in which the "proviso" is applied,the problems in the application of the "proviso" reflected in the first two groups of data are not comprehensive.In this way,we select the third group of data,search the keywords and screen out 220 criminal judgments applicable to the crime of "proviso",and analyze the application reasons of these 220 judgments.First of all,it finds out the abuse of "proviso" in the application from the perspective of macro analysis.Through the theoretical analysis of the first part,the reason for the application of "proviso" is to exclude the constitutive elements of the crime without considering the criminal form and the factors of penalty discretion,and even several sentences have not explained the applicable reasons.It can be seen from the data that 30% of cases apply the "proviso" for unreasonable reasons.Next,the reason for the application of the proviso is to make a micro analysis of the judgment excluding the constitutive elements of the crime.The elements of the constitutive elements of the crime include the subject factor,the behavior factor,the result factor,the causal relationship,the amount factor and the subjective factor.Through the analysis of the expression of the proviso and the legal theory,it can be seen that only the behavioral elements can make a judgment of the degree,while the other elements can only make a judgment It is obvious that the judgment of "whether there is" is inconsistent with the content of "proviso",so other elements can not be the reason for the application of proviso,only one third of the cases apply "proviso" through data analysis,the reason is that the behavioral elements are excluded,and the reason for the application of "proviso" in two thirds of the selected cases is wrong.The application of "proviso" mainly includes two kinds of situations: dare not to use and abuse.Based on the analysis of three groups of data,this paper analyzes the current situation of the application of "proviso",and finds out the problems existing in the application of "proviso",such as unclear legislation,imperfect performance evaluation mechanism of the three organs of public prosecution and law,unscientific quality of case handlers,and puts forward the problems accordingly Come up with solutions.I hope it can help to solve the problems existing in the application of "proviso" and realize the due functions and functions of "proviso".