Rethinking and Reconstructing of the Decriminalization Mechanism of the Proviso in Article Thirteenth of the Criminal Law
The proviso in Article thirteenth of the Criminal Law should be interpreted as meaning that factual circumstances significantly less serious and thus less punishable cannot be evaluated as crimes.By deconstructing the concept of punishability into the deservedness of punishment and the need of punishment,the minor degree of either can be regarded as the substantive reason for the decriminalization under the proviso.In terms of system position,the decriminalization of the proviso on the grounds of the minor degree of the deservedness of punishment blocks the appropriateness of the constituent elements,and the decriminalization of the proviso on the grounds of the minor degree of the need of punishment excludes the responsibility.In terms of judicial application,the application of the proviso on the grounds of the minor degree of the deservedness of punishment has an independent value distinct from the substantive interpretation of the constituent elements,but its scope and criteria must be clarified.The application of the proviso on the grounds of the minor degree of the need of punishment involves the purposive consideration of criminal policy,and in cases such as crimes committed within the family,crimes committed by special groups,and crimes committed because of a low probability of avoiding mistake in the cognition of illegality,the perpetrator can be exempted from criminal responsibility.
the provisothe system of crime constitutionthe deservedness of punishmentthe need of punishment
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