Research On Miscellaneous Provisions In Criminal Law

Miscellaneous provisions are a set of general criminal law provisions that legislators have set up to fill legislative loopholes and defuse the contradiction between the lag and stability of criminal law.However,while making the criminal law tightly organized,the miscellaneous provisions also have the risk of being applied unreasonably.Therefore,the background conditions of China's criminal legislation and the actual situation of judicial practice should be combined to find a way to improve the miscellaneous provisions in criminal law.In addition to the introduction and conclusion,this article mainly includes five parts.The first part is an overview of the miscellaneous provisions.This part defines the miscellaneous provisions from the perspective of content,grasps the universality,openness,vagueness and expansive features of the miscellaneous provisions,and classify them from four different angles: conviction and sentencing,application,covering elements,and function.The second part is the historical evolution of the miscellaneous provisions.According to the development process of China's criminal law,this part combs the legislative context of the miscellaneous provisions from the two stages of the Criminal Law 1979 and the Criminal Law1997,and examines the legislative options at different stages and their impacts in practice.The third part analyzes the positive effects of the miscellaneous provisions from the macro level and the case level.The macro level includes the active role of the miscellaneous provisions in complementing the lag of criminal law,regulating criminal behavior and meeting the needs of criminal policy.The case level includes the positive effects of miscellaneous provisions in the exercise of judge discretion and the realization of case justice.The fourth part analyzes the negative impacts of the miscellaneous provisions from the macro level and the case level.The macro level includes the negative impacts of miscellaneous provisions on criminal law's principle of legally,modesty,and stability.The case level includes the negative impacts of miscellaneous provisions on the judge's exercise of discretion and judicial credibility.The fifth part concludes the suggestions for perfecting the miscellaneous provisions from two levels of legislation and justice.The legislative level strives to rationally control the scope and number of miscellaneous provisions,and strengthens typed legislation.The judicial level focuses on regulating the interpretation,retrospective effect,exerting the function of the case guidance system and establishing judicial application rules in the case of co-opetition to improve the miscellaneous provisions.