| The statutory maximum punishment of the crime of Imparting Criminal Methods decreed in the 295th article in Criminal Law is capital penalty, which the writer thinks has many defects . There is little deep study about this issue in the theoretical circle. Depending on the legislation background of this crime , this writer analyzes the statutory of this crime and gives his legislation suggestion.Part One Analysis of the legislation backgroundFirst the social background of the establishment of this crime and its too severe statutory punishmentAt the beginning of 1980s, the main social reason for the establishment of this crime was the severe social security situation, when China was turning into the market economic system from the planned economic system and was in a period of great social transformation .The fourth most serious criminal period appeared. In order to punish and control the crimes, many regulations were promulgated and the principle of "serious punishment" was established .In 1983, a new crime ,that is ,Crime of Imparting Criminal Methods ,was created in the "Decision" by the sixth National People's Congress and its maximum punishment was death penalty ."Serious punishment" has achieved some positive effects, but it also has brought about many problems, which neglects the human rights but pays overdue attention to the defense of social security.Second, change of circumstances requires the adjustment of the criminal punishment. In fact, there were complex reasons for the appearance of high crimes. It is apodictic for the increase of social situation and the criminal reality, and with the deeper recognition of the value of punishment, it is necessary to review and modify 1979 Criminal Law, based on the Principle of Balance Between Crime and Punishment. However, 1997 Criminal Law does not make any modification on the statutory punishment of Crime of Imparting Criminal Methods and still sticks to the maximum punishment of death penalty, which goes against the Principle of Balance Between Crime and Punishment and the policy of limiting death penalty.Part Two Characteristics and accertainment of this crime.First criminal objective victim :It is generally agreed that the Criminal objective victim of this crime is the social security management order, a branch of the social management order. Imparting concrete criminal methods will cause new crimes and bring about direct jeopardy to the society, therefore, it is correct to set the criminal objective victim as the social security order.Second, objective aspects: The objective aspects of this crime show that the act of imparting criminal methods has happened. The methods of imparting are various and always changing especially with the development of technology. The receiver of imparting do not have to be a person who has reached the age to assume criminal punishment, a particular person or particular few persons. The criminal methods only refer to the methods for direct deliberate crime.Third , accertainment of the completion of the crime of Imparting Criminal methodsThere are different opinions about whether completion and incompletion can be distinguished. By comparison, we can find this crime is a comportment crime instead of a behavior crime. There should be a process from the beginning of imparting criminal methods to its completion, therefore there should be a situation that the act of imparting has not completed. But in the practice, the court should make a concrete analysis by combining the characteristic of a particular case with its social jeopardy, and then accertain whether the act constitute the crime (incompletion) or not.Part Three Analysis of the Statutory PunishmentFirst, capital penalty goes against the Principle of Balance between Crime and Punishment.Statutory punishment must follow the Principle of Balance between Crime and Punishment, that is, severe punishment for serious crime and slight punishment for misdemeanor. In China, capital penalty should only be applied to extremely se...
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