我国现阶段轻微犯罪数量的急剧扩张和重大争议案件的出罪渠道不畅，反映出罪机制的系统性缺陷。“立法入罪、司法出罪”是轻罪时代刑事政策的实然选择，应在肯定活性化立法积极意义的同时探寻优化司法出罪机制之路径，以坚守刑法的谦抑性品格。考察我国现有出罪理论与实践，暴露出其实现机能之孱弱：立法出罪存在“但书”条款性质模糊与出罪事由供给不足的缺陷，司法解释的出罪事由面临体系含混和功能受限的桎梏，出罪实践则过度依赖“但书”之适用，使其承受难以负担之重，招致同案异判与个案冲击之质疑。

  “但书”未能撼动犯罪构成是检验犯罪成立的唯一标准之地位，但基于犯罪混合概念具有融合刑事违法性和社会危害性的功能，加之总则对分则的统领作用，应承认“但书”的实体出罪功能。考察“但书”作用于阶层犯罪论体系的具体路径，可知不满足构成要件的情形并非“但书”涵摄范畴，但二者仍存在互动关系，即“但书”使针对构成要件的解释呈现一定程度的实质化特征。超法规的违法阻却事由和责任阻却事由与“但书”的条文表述和价值理念具有实质契合性。就罪量要素与“但书”的关系而言，应区分立法定量与司法定量，前者罪量要素是构成要件的组成部分，在达到罪量程度时并无“但书”出罪之空间，而后者则具有灵活性，即推定可罚违法性的罪量要素得以依据具体情形加以反驳。“但书”出罪视域下犯罪论体系具有内在契合性，即四要件犯罪论体系语境下应对犯罪客体与犯罪主观方面进行实质解释，其分别对应于阶层犯罪论体系的违法性和责任阶层，由此可实现“但书”与不同犯罪论体系之间的有机贯通。

  刑事责任具有程序出罪之功效，应对其理论内涵进行深入挖掘，以实现其概念的实质化。即使经由犯罪构成检验成立犯罪，亦可否定刑事责任之承担，从而实现犯罪成立与犯罪认定的分离。刑事责任的考察对象是“情节综合体”，包括构成要件事实、法定量刑情节、酌定量刑情节和其他量刑情节。排除刑事责任的出罪路径为针对责任分配和责任消弥的考察。责任分配立足于事前、事中行为的价值评价，对行为人的刑事可归责性予以置评；责任消弥则基于行为人事后采取的挽救弥补措施，承认破坏的法益可得以修复，由此行为人的刑事责任得以减轻甚至免除。在否定行为人特殊预防必要性的基础上，应结合其责任刑情况，采取“点之下”理论判断需罚性之有无，以此作为排除刑事责任的理据。

  程序出罪端赖于裁量不起诉制度的优化，其理念基础在于起诉便宜主义。然而，不起诉的行使受条文内涵、运作环境和交叉制度等多重因素制约，面临功能性困境，导致需求与供给的严重失衡。应对裁量不起诉制度体系进行重塑，以充分发挥制度效能。酌定不起诉的适用条件与刑事责任的排除标准具有一致性，附条件不起诉的主体范围和类型范畴亟待拓展，其与酌定不起诉的根本区别在于表征预防必要性的条件实现的考察方式和所需时间存在差异。

  犯罪论体系内部的“但书”出罪与犯罪论体系外部的刑事责任出罪，分别构成实体出罪与程序出罪，同时二者均依赖于刑事诉讼程序的运作。应优化程序环境，重视立案环节的审查和违法立案的监督，同时拓展检察机关提前介入侦查的范围以实现实体出罪的程序保障。裁量不起诉蕴含协同共治的司法理念，应立足于多元主体之互动以确保公正价值的实现。实体出罪和程序出罪旨在实现实质正义，而司法共治则通过多元主体之协同，在保持程序正义独立性价值的基础上确保实质正义的实现。实质正义与司法共治之交融，具有深刻的理论意蕴和实践机理，对于轻罪时代犯罪圈的司法限缩、刑事治理策略的选择和治理效能的提升、国家治理体系和治理能力现代化均具有重要意义。

The rapid expansion of the number of minor crimes and the poor channels of excluding crimes in major controversial cases reflect the systematic defects of the excluding crime mechanism. "Criminalization by legislation and non-criminalization by judicature" is the practical choice of criminal policy in the era of misdemeanor. We should not only affirm the positive influence of active legislation, but also explore the path to optimize the mechanism of non-criminalization by judicature, so as to adhere to the modest character of criminal law. Reviewing the existing theory and practice of excluding a crime, it reveals the weakness of its implementation function: there are defects in the vague nature of the "proviso" clause and the insufficient supply of the reasons for excluding a crime in legislation, the reasons for excluding a crime in judicial interpretation are facing the shackles of ambiguous system and limited function, and the practice of excluding a crime relies too much on the application of the "proviso", which makes it bear the burden that is difficult to bear, and leads to the challenge of different judgments in the same case and the Irrationality of individual cases.

The "proviso" fails to shake the position that the constitution of crime is the only standard to test the establishment of crime, but based on the function of integrating criminal illegality and social harmfulness of the mixed concept of crime, and the guiding role of the general provisions on the sub provisions, the substantive  function of excluding crimes of the proviso should be recognized. Examining the specific path of the proviso acting on the stratum crime theory system, we can see that the situation that does not meet the constitutive elements is not the scope of the "proviso", but there is still an interactive relationship between the two, that is, the proviso makes the interpretation of the constitutive elements present a certain degree of substantive characteristics. Illegality and liability layers are in substantial agreement with the provisions and values of the proviso. In terms of the relationship between the elements of the quality of crime and the proviso, we should distinguish between the legislative quantitative method and the judicial quantitative method. The former  is an integral part of the constituent elements, and there is no room for the "proviso" to adapt when the degree of the amount of crime is reached, while the latter has flexibility, that is, the element of the amount of crime that presumes the punishable illegality can be refuted according to the specific situation. The criminal theory system in the perspective of "proviso" crime has internal consistency, that is, in the context of the four elements criminal theory system, the substantive interpretation of the criminal object and the subjective aspects of crime should be carried out, which respectively correspond to the illegality and responsibility layer of the hierarchical crime theory system, so as to realize the organic connection between the proviso and different criminal theory systems.

Criminal responsibility has the function of excluding crime by procedure, so its theoretical connotation should be deeply excavated in order to realize the substantiation of its concept. Even if a crime is established through the test of the constitution of the crime, it can also deny the commitment of criminal responsibility, so as to realize the separation of the establishment of the crime and the determination of the crime. The object of criminal responsibility is the "plot complex", including the facts of constitutive elements, legal sentencing circumstances, discretionary sentencing circumstances and other sentencing circumstances. The way to exclude criminal responsibility is to investigate the distribution and elimination of responsibility. The distribution of responsibility is based on the evaluation of the behavior in advance and in the process, and comments on the criminal accountability of the perpetrator; The elimination of liability is based on the remedial measures taken by the perpetrator, which recognizes that the damaged legal interests can be repaired, so that the perpetrator's criminal responsibility can be reduced or even exempted. On the basis of denying the necessity of special prevention of the perpetrator, we should adopt the "below the point" theory to judge whether there is a need for punishment in combination with the situation of his criminal responsibility, as the basis for excluding criminal responsibility.

Excluding crimes through procedure depends on the optimization of the discretionary non prosecution system, and its conceptual basis is the doctrine of prosecution convenience. However, the exercise of non prosecution is restricted by multiple factors such as the connotation of the provisions, the operating environment and the other institutions, and faces a functional dilemma, resulting in a serious imbalance between demand and supply. We should reshape the system of discretionary non prosecution in order to give full play to the effectiveness of the system. The applicable conditions of discretionary non prosecution are consistent with the exclusion standard of criminal responsibility, and the subject scope and type category of conditional non prosecution need to be expanded. The fundamental difference between conditional non prosecution and discretionary non prosecution is that there are differences in the inspection methods and time required to realize the conditions that characterize the necessity of prevention.

The "proviso" within the crime theory system and the responsibility outside the crime theory system constitute entity excluding crime and procedure excluding crime respectively, and both of them depend on the operation of criminal procedure. We should optimize the procedural environment, pay attention to the examination of filing links and the supervision of illegal filing, and expand the scope of procuratorate ' s early intervention in the investigation to achieve the procedural justice of entity crime. Discretionary non prosecution contains the judicial concept of co governance, which should be based on the interaction of multiple subjects to ensure the realization of the value of justice. Substantive excluding crime and procedural excluding crime aim to achieve substantive justice, while judicial co governance ensures the realization of substantive justice on the basis of maintaining the independence value of procedural justice through the coordination of multiple subjects. The blending of substantive justice and judicial co governance has profound theoretical implications and practical mechanisms. It is of great significance for the judicial limitation of the criminal circle in the era of misdemeanor, the selection of criminal governance strategies and the improvement of governance efficiency, and the modernization of national governance system and governance capacity.