The Activation of the Saving Clause in Criminal Law:System Positioning and Norms Application
Against the background of misdemeanor management,the criminal law structure of our country is shifting from"severe but not strict"to"strict but not severe",and minor illegal behaviors face the legal problem of decriminalization.However,as the general basis of crime in Chinese criminal law,there are multiple practical difficulties such as low application rate and improper application.In view of this,it is necessary to explore its crime mode and activate the application of this clause.At present,there are debates in the academic circles about the system orientation of the standard of de-criminalization,the criterion of crimes,the principle of guidance and the theory of punishable illegali-ty.It is contrary to the crime setting mode of"legislative qualitative+legislative quantitative"in our criminal law,and easily leads to the judicial risk of"different sentences in the same case"and"abuse of discretionary power".There are logical defects in the theory of limitation standard of crime which repeatedly appraise the substantial illegality of crimes.The principle of guidance is also difficult to re-spond to the practical needs of many minor offenses.There are three theories in the system positio-ning of the theory of punishable illegality:the theory of preventing but constituting elements of pro-priety,the theory of preventing but constituting elements of illegality and the theory of dualism.If the specific provisions of the offence contain quantitative factors,it will prevent but constitute ele-ments of propriety;if the specific provisions of the offence do not contain quantitative factors,it will prevent illegality.However,the saving clause of"significantly minor circumstances"represents the degree of overstepping social equivalence,and"little harm"represents the degree of infringement of legal interests.As long as either is satisfied,the crime can be prevented.
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