On Miscellaneous Provisions In The Criminal Law

Throughout the ages,both the Eastern and Western jurists have hoped to develop an eternal universal law to cover crimes in social life.However,social life is constantly changing,coupled with the limitations of the times and legislative techniques.For other reasons,this desire is never possible.Although legislators in various countries are no longer pursuing the eternal law,countries always hope that criminal law can have a broader coverage when it comes to criminal law,in order to adapt to social changes and fight crime more effectively,so in criminal law.There is a real need to set a certain number of general and ambiguous clauses,so in such a realistic situation,the terms of the pocket came into being.Because of the strong flexibility of the bottom item,it is very operability in the practice process,which can effectively solve the characteristics of the legal provisions,so many criminal clauses have been established in China's criminal legislation.However,it is precisely because of the generality and ambiguity of the terms of the pockets that it leads to the uncertainty of the content,which inevitably conflicts with the clear requirements of the principle of legality of the crime,and also causes problems in the theoretical and practical circles.The fierce controversy over the value of the terms of the pocket.It is undeniable that the criminal clause has an active role in criminal legislation and judicial application.It can play a strict criminal law network,intercept crimes,and give judges discretion.However,because of the characteristics of the stipulations,improper establishment and application will inevitably bring a lot of harm to the society,leading to the expansion of the state's penal power,causing certain crimes to become "pocket crimes" and different judgments.Therefore,when legislation is necessary,the provisions should be set up when necessary to control the number of clauses;when applying the terms of the pocket,the judicial interpretation should be improved,and detailed explanation documents should be produced,so that the clauses can play a sinful role,crack down on crimes,and make criminal law more and more adapted to the real society.This article is divided into three parts: the basic theory of the terms of the bottom,the establishment and application of the terms and conditions,the causes of the problems,and the suggestions for improvement:The first part first defines the concept of the pocket clause,then analyzes its basic type,and finally analyzes the reasons for the existence of the pocket clause.The concept of the bottom clause is: in order to prevent the lag of the criminal law,the legislator prevents the criminal perpetrator from escaping the punishment of criminal law,and the generalization in the corresponding criminal law provisions is expressed in the vague language with "other" or "equal".Sexual criminal law provisions;according to different classification criteria can be divided into enumerated bottom clauses and generalized bottom clauses,conviction-type bottom clauses and sentencing-type clauses,single-type bottom clauses and double-type bottom clauses,pure type of bottom clauses and The impure type of the bottom clause;the bottom clause is due to the limitations of legislative technology,the characteristics of the law itself,and the limitations of the language.The second part introduces the problems in the establishment and use of the bottom clause,and analyzes the causes of the problem.The problems in the establishment are mainly conflicts with the principle of legality of the crime,the judicial interpretation of the infringement of the legislative power and the judicial interpretation.The main problem in the judicial application is that the judicial discretion may lead to judicial corruption and judicial interpretation.Problems such as the inconsistency of the judiciary and the different judgments of the same security;the cause of the above problems is that the criminal law itself has natural defects and the interpretation of the terms of the pocket is not standardized.The third part puts forward suggestions on the improvement of the establishment and application of the stipulation clause,and elaborates on the perfect way from the aspects of legislation and judicial application.Correctly establish and improve the interpretation of the terms of the pocket;the reasonable way to establish the terms of the pocket is to: advance the rules of the criminal law,establish the provisions of the pockets when necessary,refine the terms of the pockets,and assign certain laws to other laws or Set the rules for administrative violations;the reasonable application of the terms of the stipulations is: play the role of guiding cases,use the judicial interpretation to clarify the terms of the stipulations,and apply them at the end and when necessary.