Reflect on the use of proviso clause in Criminal Law

Li Xiang, director of Comparative Penal Law and International Criminal Law Institute, East China University of Political Science and Law

The new pilot guideline of the Supreme People's Court uses the proviso clause in Article 13 of the Criminal Law as a disposal approach for decriminalization of drunken driving, which needs to be reflected upon.

The proviso clause in Article 13 has only an indirect guiding significance; it need not necessarily be directly applied in practice. The determination standard of "if an act is obviously minor, causing no serious harm" is to assess the level of social harm an offense has caused, which gives law enforcement officers a big say in deciding the extent of the social harm so caused.