중국형법 제13조 단서와 범죄배제

Under the influence of the Criminal legal system of the Russia, The article 13 of the Criminal Law of the People’s Republic of China has been used in chinese jurisdiction realities for several decade. Due to arbitrary interpretation of related law, sometimes it has ever brought different result to similar case and has been the core issues in the law sphere. Before the birth of modern criminal law in 1979, The standing Committees of the National People's Congress has ever adjusted the article 13 several times, But in the end they choose the expressions the regulation has selected such expressions as “if the circumstances are clearly minor and the harm is not great, they are not to be deemed crimes”. As far as the article is concerned, there exist pros and cons: The Pros assert that the article 13 is likely to harm the principle of legality; The cons argue that sphere of the article 13 and the principle of legality is different, and it is suitable for chinese legal environment. Based on the substantive enactment, the criminal law of continental legal system countries regard crime as the action that has conformity of important constructive conditions, illegality and accountability. they choose formalist way, since it was result of a request by the age of Enlightenment that has ever brought the principle of legality which has resisted against formality of crime and punishment decided by the emperor and the nobility. Even though Anglo-American law countries lacked off programmatic definition about crime, they used practical approach and developed theoretical research. The criminal law of the People’s Republic of china has been started in 1979, and Revised criminal law has received system and theory of other countries formed chinese legal system. But from the concept of crime and criminal configuration, criminal law has received influence from Russia too much, therefore many scholars have asserted they should get rid of criminal systems of russia that was about to hinder the progress of chinese system of it own. The article 13 of the criminal law belongs to general rules that influence Subject of crimes and subjective Requirement can become the legal foundations, but in reality the application ratio of the article 13 is not high, also criminal judgement based on that article 13 is much smaller. There are only several judgements about euthanasia and Petty theft that tried to adopt the principle of article 13. Cause there were no clear judicial interpretations about article 13 from the Supreme Court of Judicature, Law enforcement workers were not confident whether or not adopting that article 13, and were reluctant to carry out legal works without uniformed judicial interpretations and guidelines.