Comparing Research On The Discontinuation Of Crime

Discontinuation of crime is an important concept in the theory of criminal law. However,how to define discontinuation of crime? There are various of views and understandings in the circles of criminal law all over the world, in our country, the circles of criminal law fails to deliberate the problems of discontinuation of criminal very intensively, which brings some problems and difficulties into the discontinuation of crime processing in practicing justice. Therefore, the comparative study of discontinuation of crime will help the circles of criminal law theorists in our country to deepen the reorganization of discontinuation of crime, thereby, to direct the criminal legislation and judicature. This paper focuses on the few dispute questions of discontinuation of crime ,which are the legislation of discontinuation of crime, the constitution of discontinuation of crime, the penalty of discontinuation of crime and its foundation and the discontinuation of joint offence .this paper also set forth some countries rules of discontinuation of crime ,the theories and views of their circles of theory , analyze their advantageous and reasonable part , approach to the shortcomings of our criminal law on those problems , meanwhile , put forward some good advices.The first part expounds the legist ions of discontinuation of crime, enumerates. Russian federal criminal code , German criminal code , Korean criminal code, Japanese criminal code, and Chinese criminal respectively , clarifies the a flaws and means of modifications of our legislation and law .That is the exist scope of discontinuation of crime in Chinese legislation is wide which brings a lot of malpractices into the criminal legislation and judicial processing . With regard to values, legislators should limit discontinuation of crime to the stage of committing the most heinous crime, the stage of committing intentional crime and the stage of after committing intentional crime. The paper holds the view that it is worth drawing references from the legislation of Japanese. For the thing, Japanese criminal code limits discontinuation of crime to few crimes. For another, the scope of discontinuation of crime is limited to committed crime, which excludes the possibility that discontinuation of crime occurs in the preparation of a crime.The second part depicts the key elements of discontinuation of crime's constitution. The key elements are the core of discontinuation of crime; mainly refer to define discontinuation of crime from several aspects. Legislation is different country from country, so that the key elements are various. The paper expounds the prescription of the key elements in committing a discontinuation of crime of four countries, which are America and Korea of Anglo-American jury system, Japan and Italy of continental jury system. Meanwhile this paper also points out the prescription of discontinuation of crime in our criminal law. This paper draws the fruits of other countries'criminal law theory, explores the subjective elements and objective elements of discontinuation of crime. The subjective aspect constituting discontinuation of crime should be judged its automaticity and thoroughness. The objective aspect constituting discontinuation of crime should be judged from its time, the act of discontinuation and validity. With regard to the automaticity , the actor should be capable to commit a crime but haven't the intentions . The capability is the prerequisite forming automaticity , is the factor forming automatcity . Only discontinuation of crime has these factors can crime be judged. Unwillingness refers to the person quit committing a crime because the person don't want to commit it, which is the subjective factor. Only the person is willing to quit crime but not forced can the discontinuation of crime be tenable, otherwise, named criminal attempt. With regard to thoroughness subjectively, the actor is required to quit crime, and the actor'willingness is not including the waiting time to take advantage of the conditions created before to commit crimes ; eliminate the effect and block the relation between the criminal conditions created before and the crime . With regard to the time and space, discontinuation of crime should occur after started a crime before consummated a crime. With regard to the act of discontinuations it should be divided into passive discontinuations and active prevention of criminal actor. Passive discontinuation refers to actor quits committing a crime before end a crime. Active prevention of crime refers to the place of the end of a crime action and a few situations that the crime action is not complete but its result has been taking effect. Discontinuation of crime is tenable in terms of the active suspension of a crime and the effective action to prevent a negative result from occurring. With regard to the effectiveness, it requires the actor's discontinuation is not fit for the condition of consummated crime. That is the criminality as our criminal law stated doesn't possess the terms that common requisites in constitution of specific crime in its impersonal aspect.The third part discusses the punishment principles of discontinuation of crime. First of all, it presents the principles of punishment of other countries. In this case, we can conclude that award theory is the foundation of abating punishment to discontinuation of crime; the society and personal danger and criminal policy is the abating punishment's principle in Japanese criminal law. On the basis of the theory of the principles of punishment abating, this paper presents the view that the foundation of punishment abatment is various. It is unilateral to abate punishment simply according to subjectivism, objectivism and compromism. Combining our criminal law and criminal theory, analyzing the punishment mitigation from three aspects that are law, theory and policy, this paper holds the view that not only the reason of punishment mitigation but also the grounds of punishing a discontinuation of crime should be paid the very attention, in anther words, it explores why a discontinuation of crime actor should bear the criminal responsibility . it's necessary to study why mitigate a punishment to discontinuation of crime actor as long as there is a ground to punish discontinuation of crime's actor . with regard to the theory foundation and policy foundation , this paper points out that the criminal law view combining subjective aspect and objective aspect , the principle of guilty and responsibility and punishment suitable for each other , the purpose of criminal punishment combining the specific prevention and general prevention , are the sound basis to deduct the punishment to discontinuation of crime .The forth part refers to the determine crime termination of joint offenders, which involves joint offend theory and discontinuation of crime, is a difficulty in the jury practicing. Whether the discontinuation of crime is tenable or not and its influence on measurement of penalty remain dispute in history between subjectivism and objectivism. This paper puts forward joint offender and eliminate the driven cause are taken to be the basis of the theory of crime termination of joint offenders in our country. This paper perceives that crime termination of joint offend is also a kind of discontinuation of crime, must be in conformity with the validity of discontinuation of crime as required. But due to the stops specific nature of joint offend, the actor his/her crime action passively which is not in line with the validity of discontinuation of crime. On the basis of introducing the theory of joint offend, this paper points out that the offenders must reach an accord before commit a crime. the criminal willingness makes every offender feels lonely and unsafe if one lose the criminal intention subjectively , enforces their criminal mentality each other , which drives them carry out the criminal action to reach a common goal , is the driven force to make the harmful result comes into being . In this case, it is believed that joint offenders must take full responsibilities because of the contact between offenders take complice's criminal actions as themselves. Some coppices stop to commit a crime on their own initiative, which can bi recognized as they cut off implying. Other complice's offending behavior is not theirs any more. However, before they suspend criminal action all offenders integrate into a whole organization, they together are the"driven force"to commit a crime. Although some complice stop their criminal action passively cannot meet the requirement of the validity of discontinuation of crime. Only if when the"driven force"created before is cut off and relieved from joint offending effectively can discontinuation of crime be tenable...