On The Existence Of Incomplte Crime Patterns In Chinese Criminal Law

This dissertation will conduct an overall and systematic inquiry into the scope of the incomplete crime patterns in concrete crime in our country's criminal law.The whole article consists of seven chapters.The first chapter is the introduction. The main content of this chapter includes the prescription and assessment of the scope of the incomplete crime patterns in our country's criminal law, the retrospect and appraisal of existing research results with regard to relevant problems, and as well as the basic method and significance of the present study.The second chapter discusses that the incomplete crime patterns can only exist in felony. As a special kind of crime patterns, the incomplete crime patterns are not subsequently followed with the existence of complete crime patterns, which means that not every crime has incomplete crime patterns. The scope of the incomplete crime patterns depends on the value orientation of legislator, such as criminal idea and criminal policy. So in this chapter it mainly discusses how to reasonably delimit the scope of incomplete crime patterns. Grounded on the reality of our country and referenced from the criminal legislation stipulation about the scope of the incomplete crime patterns in criminal law of other countries and regions in the contemporary world, the author asserts that legislator should limit the scope of the incomplete crime patterns to felony. How to determine felony and misdemeanor? After analyzing four kinds of views distinguishing felony and misdemeanor in academia, the author points out that there is sufficient evidence to determine the degree of criminal acts according to the standard of certain statutory sentence. Firstly, statutory sentence is the result of legislator's judgment of social harmfulness and its degree of concrete crime. Secondly, it is common for the country with advanced legislative technique to judge the degree of criminal acts according to the standard of degree of statutory sentence. Thirdly, the criminal legislation of any country is unable to totally avoid the phenomenon of conflict in crime and punishment. It is the ideal realm constantly pursued by humankind to evaluate suitable crime and punishment. Fourthly, a given constitutive type of crime collocates with a corresponding statutory sentence, which is thelegislative model of concrete crime in our county's criminal law. With regard to the demarcation line of statutory sentence determining felony and misdemeanor, the term should be within 3-year fixed-term imprisonment. That is, it is felony when term of the crime of fixed-term imprisonment is 3 years or more, whereas it is misdemeanor.The third chapter illustrates the influence of fault form and behavioral manner upon whether incomplete patterns exist or not. Through examination of the doer's fault form and behavioral manner, this chapter aims to explain that the incomplete patterns do not exist in all the felony. Although some crime patterns are felony, they could not exist in preparatory offense, attempted offense and discontinued offense because of the influence of fault form and behavior manner. The crimes are considered to be negligent crime, indirect intent crime, pure sin of omission and crime of assembling a crowd.The fourth chapter concerns with the basic constitutive types of nonexistence of the incomplete crime patterns. This chapter discusses that two basic constitutive types, move offense and concrete dangerous offense, do not have the incomplete crime pattern. In academia there are affirmative and negative claims about whether attempted offense exists in move offense or not. Affirmation claims that there is a unaccomplished possibility between the doer's setting about an offense and the consequence taking place. Negation claims that crime is complete as soon as the doer has the act of objective elements in committing certain crime. The author points out that although the conclusion about the nonexistence of attempted offense in move offense is right, the argumentation is excessively simple. Legislator stipulate the act of objective elements in committing certain crime as accomplished offense because of considering the severe social harmfulness of this kind of crime and the need to effectively prevent and attack this kind of crime, which are the essential causes of nonexistent attempted offense in move offense. There are two kinds of dangerous offense classified as concrete dangerous offense and abstract dangerous offense. The author considers that attempted offense do not exist in the former, while contrarily it do exist in the latter. There are several reasons of nonexistent attempted offense in the former. The first reason is that concrete dangerous offense is much closer to actual damage offense. Thus in criminal law policy the punishment of concrete dangerous offense ought to be severer than that of abstract dangerous offense. Secondly the actof causing some danger is a kind of inchoate offense in a sense. It is not scientific in theory when attempted offense is set again before this kind of inchoate offense. Thirdly there is no need to criminalize since the act of causing some danger is of lower social harmfulness. Attempted offense exists in the latter because abstract danger is a kind of danger drawn up by legislator. Although the doer set about implementing the act of constitutive elements, it does not mean that the abstract dangerous consequence would also occur thereupon. Attempted possibility exists before the abstract dangerous consequence has not happened, moreover, the dangerous act causing abstract dangerous consequence has the serious social harmfulness. Thereupon it is necessary to criminalize and establish attempted offense.The fifth chapter makes a deeper analysis of aggravated constitutive types of nonexistence of incomplete crime patterns. It mainly discusses attempted offense do not exist in two aggravated constitutive types, aggregated consequential offense and aggravated offense by circumstance. The author considers that the culpability forms of aggregated consequential offense in Chinese penal provision have three types: fault and fault; intent and fault; intent and intent or fault. It is commonly agreed that attempted offense do not exist in the former two types in academia. But it is disputed about whether attempted offense exists in the last type or not. There are negative and partly affirmative statements in this dispute. The author agrees with partly affirmative statement, but thinks that attempted offense only exists when essential crime is consequential offense under the doer's direct and intent realization of the aggravated consequence. Aggravated offense by circumstance can divide into pure and impure aggravated offense by circumstance. If circumstances of crime are not very serious or abominable, accomplished essential crime exists in pure aggravated offense by circumstance. So it is a correct idea of nonexistent attempted offense in pure aggravated offense by circumstances in criminal theory. Impure aggravated offense by circumstances should be regarded as pure aggravated offense by circumstances, excluded the existence of attempted offense. In the final part of this chapter the author briefly analyzes what compound aggravated offense are and expounds the reason of nonexistence of attempted offense.The sixth chapter explains the existence of incomplete patterns of felony. This chapter is divided into three sections. In the first section the author thinks that all thefelony of existent attempted offense, which are numbered 113, should establish attempted offense. The first reason is that inchoate offense of felony punishes without exception, which is the current method in criminal legislation of other countries and regions in contemporary world. The second reason is that the percentage of all the felony of existent attempted offense and all intentional crime stipulated in crime law is 15% in our country, which percentage is relatively lower than that in other countries and regions. This reflects the legal principle of crime and the civilized principle of the criminal law in our country. In the second section the author points that preparatory act is not punished in principle in most countries. So based on this presupposition preparatory offense is considered to establish in several individual crime. The author thinks that preparatory behavior for a crime should be criminalized under these three conditions: the first is the preparatory behavior for a crime implemented for the legal interests; the second is the preparatory behavior for a crime is of harmfulness to legal interests; the third is the preparatory behavior for a crime is of serious social harmfulness. Therefore we claim that 28 kinds of crime of important legal interests should set up preparatory offense. In the third section the author basically agree with legislation in which the scope of discontinued offense accords with that of attempted offense, and as well as points out that attempted offense, not discontinued offense, exists in 9 kinds of felony in criminal law of our county.The last chapter recounts the legislative mode of the scope of incomplete crime patterns in our country. On the basis of analyzing advantages and disadvantages of legislative mode of the scope of incomplete crime patterns in Chinese and foreign criminal law, this paper puts forward the legislative mode of generalized provision and enumerated sub-provision, which is to be the optimal mode of Chinese criminal law in near future. In this chapter several suggestions are also proposed to perfect Article 22,23 and 24 of criminal law in our country.