但书条款的体系定位与轻罪出罪适用

The System Location of the Proviso Clause and Its Application to Substantive Decriminalize Misdemeanor

摘要: 在积极刑事立法观的影响下，刑法第13条但书条款承载的出罪功能对于犯罪圈的调控具有重要作用。实践中适用但书条款出罪存在无序现象，根源在于但书在犯罪论体系中的定位不明而导致其实质内涵含混。基于但书条款与轻罪出罪的契合性，应重构其理论运行路径，在区分犯罪构成体系内的应罚性和体系外的需罚性的前提下，将但书条款定位为体系外的独立出罪事由。经犯罪构成标准确证而具有应罚性的行为，若综合全案各因素判断不具有刑事政策上的预防必要性或由非刑罚手段制裁亦无损于社会生活秩序，则可以行为不具有需罚性为根据而适用但书条款予以出罪，从而在司法实体层面平衡轻罪的合法入罪与合理出罪。

Abstract: Under the influence of the positive view of criminal legislation, the 13th proviso clause of the “Criminal Law”, which carries the function of substantive decriminalization, plays an important role in regulating the criminal circle. In judicial practice, there is a disorder in the application of the proviso clause, which is rooted in the unclear positioning of the proviso clause in the criminal theory system, resulting in its ambiguous substantive connotation. Based on the compatibility between the function of the proviso clause and the decriminalization of misdemeanors, its theoretical path of application should be reconstructed. On the premise of distinguishing between the deservedness of punishment and the need for punishment, the proviso clause should be regarded as a reason for substantive decriminalization outside the system of criminal composition. If an act has been confirmed to deserve punishment by the standard of criminal composition, we should make a comprehensive judgment based on various factors of the entire case to ensure whether the act has the necessity of prevention in criminal policy or is detrimental to social order by non-custodial sentences. If the act does not have the need for punishment, it may not be considered a crime according to the proviso clause. This approach can balance the legal conviction and reasonable decriminalization of misdemeanors at the judicial entity level.