Application Of Undercover Provisions In Criminal Law

"As soon as the law is enacted,it begins to lag behind the times." This sentence expresses the lag of the law.After the law is enacted,it acts as a tangible existence,regulating all aspects of social life.Generally speaking,the design of legal rules by legislators is based on current and realistic social relations and social contradictions.Laws that transcend current social reality do not exist.However,objective reality is constantly evolving.With the continuous development and progress of productive forces,social relations have become increasingly novel and complex.How to adapt the law with stability and hysteresis to the constantly changing and changing social reality,the more feasible way is to start with the setting of legal provisions.As a guarantee law,the criminal law must follow the principle of modesty.But at the same time,it cannot overemphasize the protection of human rights and neglect the function of protecting legal interests.By setting certain bottom clauses in the provisions of the criminal law,the expansion of the provisions of the criminal law can be enhanced,so that the criminal law network can be tightened and the balance of human rights protection and legal interest protection can be achieved.However,some problems that arise in the application of the bottom clauses have to arouse our vigilance.This is mainly manifested in the expansion of the scope of application of the judicial interpretation and judicial application to the pocket clauses.For example,the behavior of raising prices during the epidemic and the "network navy" behavior for profit are interpreted as illegal business crimes,and theft of manhole covers is not The obviously injurious behavior is determined as the crime of endangering public safety in a dangerous way,and the tentacles of these pocket clauses seem to stretch out longer and longer.How many judicial interpretations are there in the criminal law? What is the current status of the application of the bottom clause? If these problems exist in large numbers,how should we solve this problem? These are the problems that this article will solve.In addition to the introduction and conclusion,this article is mainly divided into three parts.The first part is mainly about the basic definition of the pocket clauses in the criminal law,including the concept,characteristics,connection and difference with related concepts and the basic types of pocket clauses.The second chapter analyzes the application of the pocket clauses in the criminal law through empirical analysis,including the status of the judicial interpretation of the pocket clauses and the status of the judicial application of the pocket clauses.Through the analysis of the status quo of application,it is concluded that there are problems of expansion and application in the judicial interpretation and judicial application process.The third chapter is the solution to the aforementioned application problems of expansion.From a macro perspective,the application of the bottom clause in the criminal law is improved from three aspects: rules,principles,and systems.The author first proposed the principles and rules that should be adhered to in the process of interpreting and applying the pocket clauses.Among them,the principles include the principle of clarity and the principle of modesty.The principle of clarity mainly refers to trying to be clear and specific when carrying out the judicial interpretation of the bottom clauses.The bottom clauses should not be applied in the judicial interpretation of the bottom clauses;the principle of modesty refers to the judicial During the application process,prudence and restraint should be maintained.To clarify the standard protection purpose of each crime,the scope of the crime should not be expanded by mechanically applying the bottom clause.The rules are similar interpretation rules.The author has reformed the traditional similar interpretation rules.Introduce the "standard protection purpose" standard in the identification of "similar".It also provides a feasible plan for how to determine the purpose of standardization protection.In the last part,the author proposes that the case guidance system should be improved to better explain and apply the undercover provisions in the criminal law.