Punishment Scope Of The Preparation Behavior For A Crime

The preparation behavior for a crime is the action that creates the convenient condition for commit a crime. It can not be impinge on right and interest directly. There is discrepancy in the scope of punish in the criminal law theory. By comparison and analysis of many countries criminal law regulation, combining the characteristics of the preparation behavior for a crime itself, the paper is going to have an argument that only a part of the preparation behavior for a crime which dangerous to right and interest can be punished. The thesis is divided into 4 parts.The first part is general statement for the preparation behavior for a crime. The author have defined and set the boundary for the behavior of the preparation behavior for a crime conception, mainly by addressing the different characteristics between subjective and objective as well as the scope they exist. In subjective, the preparation behavior for a crime intention consists of two level contents, one is the intention of preparation that one is going to commit a crime, another one is intention that the one about to put into practice or finish crime through those preparation. In objective, there are three characteristics, namely executive, preparation and indirection. When stating the scope that preparation behavior, we mainly focus on the reorganization of"set about". For recognize the"set about"correctly, first of all, we have to make clear the essential difference between the preparative behavior and executive behavior. After that, we figure that the crime preparative behavior should be the action that goes beyond the crime meaning stage and not yet start"set about", just create the condition for executive action which give the indirect affect to the right and interest. Since we have ascertained of preparative behavior conception, we discuss the categories of it as well in this part in which mainly describe the typical presenting way of the preparative behavior in practice.In the second part, we contrast with punish modes of crime preparative behavior of many countries by the comparative analysis. In western countries including the continent law system countries and English-American country protest that crime preparative behavior should not be punished in principle for they under the influence of crime law opinion of objectivism. However, in some provision of crime law of many countries, it happen to coincide to has penalty regulation for some preparative behavior, some regulated in detailed clause, some is obscure by the boundary of attempt at an offense and preparation or as an form of collusion. Even in many cases, there is special criminal type endowing for some substantial preparative behavior, while in Soviet Union, Russia and other east Europe countries appear thorough contrary regulations. Their crime law definitely regulates to punish the crime preparative behavior. But not all the crime preparative behavior will be punished in those countries. Some regulates definitely in the crime law that only severe crime preparative behavior will be punished while some will relieve of penalty for light the preparation behavior for a crime during actual judicial practice. We draw a conclusion from those comparisons and analysis that the general treatment to crime preparative behavior in international is to limit penalty scope.The third part statements wants to come out that the preparative behavior should not be all punished due to the danger analysis of the crime preparative behavior. We first analyze the dangers which as the radical foundation of penalty, thinking that the danger as penalty foundation should have been following three characteristics: first of all, danger is a possibility which is likely to impinge others right and interest. Second, danger involves two sides in both subjective and objective. Finally, there are two presenting form in objectivity, namely danger of behavior attribute and danger of result attribute. And due to the indirection that preparative behavior to the right infraction, danger of it can only be considered as the one of behavior attribute, not of result attribute. So for the second question of this part, we only explore how to judge and ascertain the danger of behavior attribute. To recognize the behavior danger, author bring forward in this part that there are three steps need to be follow: First, judge if the behavior belongs to abnormal one. Second, one abnormal behavior with danger should be related to the right and interest involved in criminal law. Third, confirm the doer is of danger in subjective. With solution of judging method of danger, combining the characteristics of preparative behavior itself, an opinion is raised that whether the behavior is under abnormal condition is a crux for recognition of a concrete behavior has danger or not. Discarding the subjectivity which is difficult to identify, the preparative behavior has no big difference with normal behavior in our daily life. That is to say most of the preparative behavior is normal, not every one of them is of danger, so it can not bring all the preparative behavior into the penalty scope of criminal law, but fix the scope for the preparative behavior only with dangers.The forth part of the thesis analyze the mode of penalty regulation for preparative behavior in the criminal law of our country as well as criticize the argument that 22 clause in our criminal law actually set up the principle for punish the preparative behavior to which supported by most scholars. The author claims to make use of the criminal law theory and its general principles to give a new explanation for its regulation. In the first place, for the value criminal law pursuit, the present law greatly advocates the function of human rights guaranty, and constrict to the crime law expand to people's free life. In the next place, for basic standpoint of criminal law, it has the tendency of objectivism. Under this view, the criminal law expansion will be controlled as possible as it can in practice. At the end, for the 13 clause of"but"regulation, only the severe behavior to the society is regarded crime, and not all preparative behavior has danger. Of all these aspects, the conclusion is our present criminal law actually restricts the penalty scope for preparative behavior. With this directing thought, we go in-depth to discuss which preparative behavior should be punished in our country. After criticize the view that the penalty scope for preparative behavior simply depend on how serious the crime that the doer ready to commit, we think, to punish the preparative behavior is for sake of considering two points: for one thing, frighten as early as possible to protect some special and important right and interest. For another, some preparative behavior has danger itself. Therefore, we have to control the penalty scope for preparative behavior by two sides. One is to check is it the preparation for severe crime. Second is to see if this preparation has danger or not. In all, the penalty scope for crime preparative behavior is apply to the preparation that has danger and ready to carry out the serious harmful crime.