Article thirteenth of the criminal law. Its practical significance

One, about the "social harmfulness" debate

    China's criminal law theory thinks, the crime has 3 attributes, social harmfulness, criminal law, punishment.[1]At the same time, said that the current 97 penal code article thirteenth is the regulation about the social harmfulness. The criminal law thirteenth stipulation: "all the harm national sovereignty, territorial integrity and security, secession, to subvert the people's democratic dictatorship and overthrow the socialist system, undermine social and economic order, violation of property owned by the state or collective property, infringement of citizens' private property, infringement of citizens' personal rights, democratic rights and other rights, and other acts harmful to society, in accordance with the law shall be subject to criminal punishment, is a crime, but circumstances are obviously minor and the harm is not great, not deemed a crime. The core theory debate around the social harmfulness of the crime and the criminal law thirteenth stipulation is, whether the nature of crime includes social harmfulness, if crime is harmful to the society and whether there will be the problem.

   On the "social harmfulness" argument, roughly divided into two different views, a criticism, a maintenance.

   Criticism of a point of view for the criminal law thirteenth stipulation possible judicial discretion of the expanding, the main concern is that the function of the crime. Because the "harmless" was not deemed a crime, is another possibility is the "great harm" can be considered a crime.

Criticism of Chen Xingliang, Mo Hongxian, to a group of scholars such as Fan Wen for representative. On the critique of "social harmfulness", only Chen Xingliang, Mo Hongxian, Fan Wen and several other startups scholars is discussed in the academic, the article has the depth of theory and academic value. While many follow-up studies are mostly follow the trend of research,

   Maintenance of a point of view mainly includes the social harmfulness of the crime concept and the importance and necessity, and the theory of social harm of the crime of criticism of the school, the theory was refuted.

   The maintenance of a pie to Chu Huaizhi, Zhang Yonghong, Liu Yanhong as the representative, the most representative documents:

   1 Liu Yanhong: "the theory of social harmfulness syndrome", "China law" in 2002 second. As a female scholar, Professor Liu Yanhong's article shows rare grand manner, of harm to society are analyzed thoroughly.

   2 Chu Huaizhi, Zhang Yonghong: "to the concept of social harmfulness", "law" in 2002 third. Professor Chu Huaizhi and Dr. Zhang Yonghong's article from the article thirteenth of the criminal law but the angle, in order to "treat the concept of social harmfulness" words made a deep understanding of the problem, the Zoupian Jian Feng, perspective is novel, adhering to the Professor Chu Huaizhi always sweep down irresistibly from a commanding height of academic style.

Two, the author summary -- aiming at the problem of social harm

   The author had previously tried to issue the author, after Reading Professor Chu Huaizhi professor and Liu Yanhong's article, Liu Wenbo, the deep reservoir, has no argument more space, follow the trend of the research of other scholars have no more new things, then sign off.

The only other scholars have not addressed, the author elaborates the unique point of view

   1, the concept of social harmfulness, neither politics nor the concept of sociology, social harmfulness is just a word, a common Chinese language. It is the concept of crime in criminal law description. Value assessment of social harmfulness of crime and crime including. The legislation also contains links into sin and crime, judicial link only with the crime, but does not have the function for crime. Here need to emphasize is, provisions are very clear, little harm is not a crime, but the provisions did not mentioned great harm is a crime, many experts to interpret the law is very childish and unprofessional. The legislative aspect of the guilty and crime is the process of delimitation of crime ring, the basic way of this process is very simple -- democracy. This is the combination of criminal law principle of legality and the results of the thirteenth proviso.

   2, the concept of social harmfulness can meet the requirement of the dynamic adaptability of criminal law. There must be an upper concept to define the crime circle of criminal reasons explained. Why these acts is the crime? Why the behavior is not a crime? Why these previous behavior is not a crime but is now a crime? Why do these actions before and now is not a crime is a crime? The connotation of social harmfulness is dynamic, so the legal provisions of the amendment is to adapt to changes in the concept of. Again, the legislative aspect of the guilty and crime is the process of delimitation of crime ring, the basic way is the process of democracy. The concept of criminal illegality cannot meet this requirement, the literal meaning of criminal law the crime concept into a mutual proof cycle.

Even with the so-called substantive criminal illegality and formal criminal illegality of distinction, the introduction of the concept of law, concept combination I still tend to social harm and criminal illegality. The introduction of the concept of law helps to promote the theoretical research level of law, legal concept is theory of law's crown jewel, is a concept, the concept, legal theory and criminal law theory can run through. But on the other hand, the author thinks that to criticize, but is a face problems. Our jurisprudence prevailed "discipline" movement -- economic law, commercial law should be independent, independent intellectual property law should be independent, "most of the scholars of the time spent for independent discipline", from this point of view, the criminal law, the legal concept of advocating criminal law scholars, seems more like a subject independence movement, although the criminal law and other department law than the original unshakable status, but it will still and political science, sociology and other boundaries.

   For this, the author's viewpoint is that:

   The introduction of the concept of law, the establishment of the conception of criminal illegality is not a bad idea, the author neutral. Concept combination but I prefer social harm and criminal illegality. The reason is that, compared to the social benefits are more abstract, more difficult to define, and dominate in the post modern philosophy trend, how to define the legal interest? Around here, not the social harmfulness is simple and clear, and I have to admit, the social harmfulness -- very precise wording. This view and the position of positivism, Professor Zhang Mingkai has the basic position of "criminal law" a book, the book mainly is the criminal law different views on the basic problems of all the arguments, school. While the basic position of the criminal law, is more simple, the author thinks that it is all criminal law scholars, criminal law, criminal science scholars should be a basic position -- crime has together. We must not forget the criminal law, criminal law which is why students, if you forget this, the rest of the knowledge will become the castles in the air.

   Summary

   Specifically, in theory there is such a problem, many scholars are found after the countermeasures to solve the problems begin to find problems. When we found the advantages of constitutive elements of crime in continental law system, now in theory of constitution of crime and the criminal law, how to see what is not pleasing to the eye. In order to introduce civil law crime constitution theory, target everywhere trees we first critique, "Su type crime constitution theory", and criticized the "social harmfulness" theory, does not know who will have pity on the next......

   On the "Su type crime constitution theory" is not without reason, but a critique of the "social harmfulness" problem is overcorrect; on the introduction of continent legal system criminal constitution theory I agree, but to a theoretical model and everywhere tree target practice is considered and the short Big deal. For Chinese scholars in academic development lost I was worried.

Three, the author summary -- article thirteenth of the criminal law. Its practical significance

   1, article thirteenth of the criminal law. But the practice has existed in the criminal field. First of all, we must admit that the reality of the existence of discretion, public security, prosecution, courts have discretion. The plot remarkable slight harm, not the case, the investigation organ may not be transferred for examination and prosecution, after reviewing the prosecution may decide not to initiate a prosecution, public prosecution cases may get an acquittal. The criminal judicial resources are limited, each agency will select the most important cases the priority, and the plot remarkable slight harm, not the case obviously will be suspended, delay, use, or even revoke. In addition, the crime black number exist forever, was found, was cracked, prosecuted, convicted cases do not include all the crime. Also, was found, caught, prosecuted, convicted of the judicial system is a screening process, so the number of access to the judicial system judicial system case is always greater than the number of outputs (conviction). But the biggest determinant in this process has 2 points, one point is the practice of article thirteenth of the criminal law act, including social harmfulness evaluation, another point is that the rules of evidence.

   Has an important effect on the practice of 2, criminal policy to the criminal law thirteenth proviso. On one hand, as mentioned, the criminal judicial resources are limited, in contrast, sin is infinite. The public security organs must be selected according to the current criminal policy is the most important case priority is transferred for examination before prosecution, procuratorial organs will select the most important cases of public prosecution, strictly to temper justice with mercy, changed from the single to the polarization of the criminal policy, criminal law thirteenth proviso practical expansion,. On the other hand, the global scope of the criminal law practice of non crime, non penalty, non custodial trend will also urge the article thirteenth of the criminal law but the promotion.

   3, not to judge link the not guilty verdict requirements are too high. First, not only that the judicial trial verdict of innocence is applicable for thirteen proviso be worthy of the name of the law, investigation, and prosecution stage plays the same role. And because the law applicable Order of investigation, prosecution stage earlier, article thirteenth of the criminal law but the crime in public, check 2 authority has been applied, the court to make a judgment of acquittal space itself is not big. If the law of the same standard, it is difficult to see a case in public, check 2 authority are considered under the circumstances of the crime, and the court was not deemed a crime. Second, demanding not guilty verdict does not meet the China reality. The criminal justice system, check - sequence, as well as the politics and Law Committee set leads to weakening of court jurisdiction. Third, evidence rules. Unless there is a change in the rules of evidence, evidence ability to strengthen defense, the defense is likely in the more equal dialogue with the prosecution evidence links, in this case, the court verdicts in space will be expanded accordingly.