Research On Discontinuation Of A Crime

This paper is to carry through comprehensive and systemic research on discontinuation of crime. There are five parts composing this article in whole, and about 210 thousand words.Chapter one firstly gives a brief illumination on legislation generalization of domestic and overseas about discontinuation of a crime. On the foundation of it, the author puts forward new define and argumentation about the notion, character and types of discontinuation of a crime. In this article, discontinuation of a crime means a kind of conformation of ceasing crime in which perpetrator give up crime of himself accord or voluntarily avoid occurring of baleful result in effect. Differing from traditional theory which can't distinguish the characteristic and inscape of discontinuation of a crime, the author thinks the characteristic should be understood in the mean of differing discontinuation of a crime from other conformation of ceasing crime. So the characteristic not need include all composing elements of discontinuation of a crime. This paper endows space time, free-will, thorough and validity with new means. About the types, this paper classifies it wholly and systemically. As to the basis of mitigating or exempting punishment of discontinuation of a crime, on the basis of wholly presentation and analyze on related theory of Germany, Japan and home, the author think "guerdon theory" is the reason of exempting penalty to discontinuation of a crime in Germany, and the theory of combining abatement of transgress and liability and criminal policy is the reason of mitigating or exempting penalty to discontinuation of a crime in Japan, and the theory of combining abatement of harm to society and personal danger and criminal policy is the reason of mitigating or exempting penalty to discontinuation of a crime in China. In addition, as far as existing scope of discontinuation of a crime is concerned, the author think, firstly it be confined to definite scope in space-time because discontinuation of a crime is final as a kind of ceasing conformation in the course of committing a crime; secondly it should be strictly confined by constitute of crime because conformation of crime classes the given traits of constitute of crime which have something to do with conviction and penalty. That is, discontinuation of a crime should be limited to a definite scope in property and responsibility for the crimes.Therefore this paper probes into the existing scope from above three ways.Chapter two dissertates the construction of discontinuation of a crime. This is the core of theory of discontinuation of a crime, and is the important part of this article. In view of discontinuation of a crime denying committed crime, which opposing foregone crime conduct in subjective and objective, this paper labels construction of it as subjective elements and objective elements and respectively demonstrates them.Subjective elements include free-will and crashing. About the free-will, this author's view is "able but no intent" which is the essence of free-will, and expounds its cognizance standard by made comparative research on all kinds of views on this issue of domestic and overseas. Only not violate the soul of legislation, free-will should be explained as possibly as allowably. That is, the offender only have free will to choose to abandon crime, and only have not meet "utterly obstacle", he should be "able but no intent". On the foundation of it, this paper explores related difficult questions of free-will's cognizance in legal practice, for example, the offender give up crime just as fear, amazement, waiting for more favorable chance, disgusting mood, obstacle of objective, worrying about detected or arrested and snag. As far as "crashing" is concerned, it means abandoning the intent of crime. Now that discontinuation of a crime directly denied forgone crime of directly intent, it must abandoning the intent of crime in subjective. Namely, though the offender realized his forgoing conduct can bring harm result to society, wishes it can't take place. According to the comparatively analyze on "drastically abandoning intent" and "drastically abandoning purpose of crime", it is concluded that positive standpoint of theory of domestic criminal law is the same to negative standpoint of theory of criminal law in continental jurisprudence system. At the same time, this paper newly defines the meanings of crashing abandon.Objective elements mainly include four factors, that is space-time, discontinuation behavior, validity and relationship. Space-time deals with the objective precondition of composing of discontinuation of a crime. Discontinuation behavior is involved of two kinds of conformation of discontinuation of a crime, namely passively abandon crime (passive discontinuation) and positive conduct to prevent outcome (positive discontinuation). In addition, it demonstrates the criterion of judge of "complete in conducting crime" and the property of abandoning repeating infringement. Hereby, "abandonment in conducting crime" can't be equal to "passive discontinuation", and "complete in conducting crime" also can't be equal to "positivediscontinuation". Otherwise, it makes a annotation about the meanings of "sincerity" of conduct to prevent outcome. This paper think committing a crime not accomplishing is the essence of validity. As for relationship of discontinuation of a crime, it means the causality of discontinuation conduct and committing a crime not accomplishing. This causality can be divided into factual causality and idealistic causality. The former is the requirement to commonly causality of discontinuation of a crime, the latter is the requirement to the conduct which be regarded as discontinuation of a crime.Chapter three especially discusses the relation of discontinuation of a crime and related conformation of crime. In the point of "transverse section" of conformation of a crime, this paper deeply analyses the correlation of discontinuation of a crime and related conformation of crime, and the mode and characteristic of discontinuation of a crime in the view of conformation of ceasing crime, conformation of criminal number and conformation of corporate crime of intent crime. It is the important part of this paper, which include three parts, namely, discontinuation of a crime and the other conformation of ceasing crime, the related conformation of criminal number and conformation of corporate crime.In the part of the relation of discontinuation of a crime and the other conformation of ceasing crime, it mainly discusses the connection of discontinuation of a crime and preparative crime, uncommitted crime and complete crime. Furthermore it puts forward new opinions about the superposition of discontinuation of a crime and uncommitted crime and complete crime. In the part of the relation of discontinuation of a crime and conformation of criminal number, it mainly expatiate discontinuation of integrated crime, implicative crime and persistent crime and etc.The relation of discontinuation of a crime and corporate crime is the elite part in this chapter. Referring cognizance principle of discontinuation of corporate crime, the author demonstrates the theory basis and practical significance of the importability of "complicity disengagement", and considering of that "complicity disengagement" should be regarded as discontinuation of a crime. According to it, the cognizance principle of discontinuation of corporate crime should be think from the follow two aspects: (1) The offender should give up the intention of jointly committing crime subjectively (2) The offender must unchain the relation of complicity in objectivity, namely, cut off the causality of his previous conduct and the other complicity's conduct. The causality of complicity mainly includes physical causality and mentalcausality. This paper dissertates the common elements of complicity's discontinuation according to four kinds of case. In addition, combining the kind of complicity of domestic crime law, it respectively discusses discontinuation of organizing crime, conjunctly committed crime, abettor and the aid of crime.Chapter four wholly reviews quasi-discontinuation of a crime. About the case that though no causality between the offender's discontinuation conduct and non-realized result exists, the offender do his endeavor to prevent from the realization of result. It isn't regulated that this case should be regarded as discontinuation of a crime in domestic criminal law, which differs from Germanic criminal law. As to this problem, domestic scholar commonly probe into it from the angle of "superposition of discontinuation of a crime and uncommitted crime" or "superposition of discontinuation of a crime and impossibility crime" according to different cases. Considering that the establishment of discontinuation of a crime manifests law's attention to the offender's subjective will, and his sincere endeavor to prevent from the realization of result manifests his subjective fatalness has changed in quality and quantity. So the author think this different type of discontinuation conduct should be paid more notice in higher levels of "quasi-discontinuation of a crime".On the basis of reviewing of legislation and related academic research work on quasi-discontinuation of a crime, the paper firstly qualifies the notion and characteristic of quasi-discontinuation of a crime. Then it demonstrates the rationality and necessity of quasi-discontinuation of a crime from ethic-morality, equilibrium of applied of crime law and legislative soul of discontinuation of a crime and so on. Lastly it presents four kinds of quasi-discontinuation of a crime, namely, quasi-discontinuation of a crime which made by the other's conduct, the victim's conduct, nature deed and result's nonoccurrence ascertained all the way.Chapter five reviews the criminal liability of discontinuation of a crime. This paper argues should pay attention to basis of punishing discontinuation of a crime besides caring for the reason for basis of mitigating or exempting punishment of it. That is probing into the reason why it should be charged with criminal liability. The basis of punishing discontinuation of a crime is rested with the follow reason: On the one hand, it accords with the basis of criminal liability, which not only has the philosophical basis of criminal liability, but has the jurally basis including material basis and basis of legal facts. On the other hand, it is the demand of the criminal policy of "combining chastising and generosity" which stick to by us all along. Thenthis paper give a wholly introduction on the legislation of punishing discontinuation of a crime of the other countries, and profoundly analyzes respective advantage and disadvantage. On the foundation of all above, the author analyses many problems of the application in punishing discontinuation of a crime combining domestic legislation of punishing discontinuation of a crime. The "damage" of the second term of the twenty-fourth item in domestic criminal law should be explained as follows: firstly it is a kind of corporeal and substantial result of be harmful; secondly it is the legal result of the other criminal composing elements; thirdly it is caused by the offender's conduct to firstly intention crime; lastly it isn't the result which the offender is born to hope. As to the understanding of "mitigating punishment", this paper dissertates it from three ways: the qualification of benchmark penalty applying, the qualification of the lowermost penalty and the conferment of the range of mitigating punishment. Lastly the author puts forward many noticeable questions. For example: discontinuation of a crime in preparative phase whether should be control object of crime law? "Leading to damage" whether should be the only standard which decides the different punishing to discontinuation of a crime and so on.