A Study On The Application Of "Prepositional Provisions" In Mala Prohibita

The theory of mala prohibita is drawing ever-growing attention in recent years.Prepositional provisions are one of the characteristics of mala prohibita in criminal law,and they are numerous in number and expressed in different forms.However in P.R.of China,certain insufficiency of theoretical researches on prepositional provisions has been observed,and such researches have not yet formed a complete system or even agreed upon a consistent concept about prepositional provisions.Meanwhile,in judicial practice,judgments that go beyond prediction by citizens emerge significantly due to unreasonable application of prepositional provisions.With the promulgation of the Amendments to the Criminal Law,the proportion of provisions in respect of mala prohibita is also on the rise thereunder.We will enter the times of mala prohibita,and the application of prepositional provisions will become a normal.Therefore,it is of great significance in theory and practice to study the prepositional provisions of mala prohibita.This article probes into prepositional provisions based on methods such as case analysis and law hermeneutics.The first chapter is the introduction,which introduces the existing researches,research methods and other basic issues of this subject.The second chapter is an overview,which defines and analyzes the concepts about mala prohibita and prepositional provisions,and runs statistics and classifies the prepositional provisions in the valid Criminal Law of the People's Republic of China.In the third chapter,this article outlines the normalization of the application of the prepositional provisions in the times of mala prohibita.By sorting out the status quo of application of prepositional provisions and illustrating judicial precedents,three problems existing in the application of prepositional provisions are revealed: unjustifiably inferior legal hierarchy of other invoked laws and regulations,invocation without verification of the applicability and the tendency of imposing criminal liability on administrative offences.The fourth chapter thoroughly analyzes the causes of unreasonable application of prepositional provisions.This article argues that superficially speaking,the aforesaid problems in applying prepositional provisions result from the provision that conviction of mala prohibita offenses requires a second violation of the criminal law,while the fundamental cause lies in the fact that prepositional provisions have become a part of the constitutive elements of crime.Behind this there are conflicts of administrative functions and modesty of the criminal law,administrative power and judicial power,as well as conflict of order value and freedom value.On the basis of clarifying the cause of the problems,the fifth chapter of this article seeks a theoretical basis for solutions thereof.The basic conclusion is: we should follow the relative law exclusive doctrine,and acknowledge the relative independence and attach importance to the modesty of the criminal law.In the sixth chapter,the abovementioned theory will be used to propose a solution to solve the problems in applying prepositional provisions in judicial practice.Specifically,it includes improving the legal hierarchy of the prepositional provisions when they are invoked,adopting a substantive interpretation theory with purpose,and making independent judgments on criminal illegality.