摘要： 我国刑法学界多数学者认为但书情节与分则条文中作为犯罪定量因素的情节性质相同,相互照应,将《刑法》第13条中的但书定性为体系内的入罪限制条件,然而司法实践中但书更通常地被作为体系外独立的出罪事由。理论与实践龃龉不合的根本原因在于对但书情节与分则条文中罪量情节之间关系的不同解读。但书不属于罪量体系,但书情节与分则条文中的罪量情节具有本质区别,两者承载的功能不同。分则罪量情节的功能在于从违法性的程度上限制入罪范围;但书情节则是刑事政策考量下需罚性阙如的出罪事由。需罚性决定于预防必要性,包括特殊预防必要性和一般预防必要性,因而但书情节包括表征特殊预防必要性阙如的情节和表征一般预防必要性阙如的情节。行为构成犯罪,就具备应罚性,但若“危害不大”,可以因不具有需罚性而根据但书出罪。

关键词: 但书, 出罪, 罪量, 情节

Abstract: Most scholars in the field of criminal law in China regard the proviso in article 13 of Criminal Law as the restrictive conditions of crime in the constitution system, and hold that the circumstances in the proviso are the same as those in the specific provisions as the quantitative factors of crime.However, in judicial practice, proviso is more often regarded as an independent cause of decriminalization outside the constitution system.The fundamental reason for the divergence between theory and practice lies in the different interpretations of the relationship between the circumstances of proviso and the quantitative circumstances of crime in the specific provisions.Proviso does not belong to the system of quantitative elements of a crime, and there are essential differences between the circumstances of proviso and the quantitative circumstances of crime in the specific provisions, and they two carry different functions.The function of the degree circumstances of crime in the specific provisions is to limit the scope of crime from the quantity of illegality, however, the circumstances of proviso are the causes of decriminalization because of absence of need for punishment under the consideration of criminal policy.The need for punishment depends on the necessity of prevention, including special prevention and general prevention.Therefore, the circumstances of proviso include those which reflect the absence of necessity of special prevention and those which reflect the absence of necessity of general prevention.If the act constitutes a crime, it is punishable, but if the “harm is not serious”, it can be decriminalized according to the proviso because of absence of need for punishment.

Key words: Proviso, Decriminalization, Quantity of Crime, Circumstance