The Legislative Review Of Criminal Preparation

Crime in preparation is a stop form in the process of intentional crime, because it has not yet embarked on crime and only played an auxiliary function for the later perpetrating act. Therefore, whether it's social harm is serious and whether it should be punished, how to penalty, each country's attitude is different. Among them with no penalty for the principle and the concept of penalty for an exception has been accepted by most countries in the world. But in China, the legislative attitude about the Crime in preparation is be punished in principle and the general provisions in the Penal Code has been made a generally provision. Such a provision over-expanded punishment scope of the Crime in preparation. This not only contrary to the economical principle of criminal law, and that the legislation of the crime in preparation embarrassed in the judicial practice. In fact, in the judicial practice, it is very difficult to prove the criminal intent of crime in preparation and it also rarely can be attached to the litigation procedure to investigate. So only a few prepare behavior which has serious legal interests invasive will be punished. This makes the legislative punishment range too extensive than the punishment range of the judicial practice and it causes our criminal law is legislatively surplus and nominal. In view of this, it is necessary to perfect the legislation of crime in preparation.We should clear the punishments cope and such a legislative mode should be structured that the criminal preparation be stipulated in both general provisions and sub-provisions.On the basis of researching the related theory of criminal preparation, the author reflects on the legislative problems of criminal preparation through studying foreign law and expects to bring forth new ideas in this territory. Besides the preface, the text is divided into three parts:Part 1, The foreign legislative situation of criminal preparation. Using the method of comparison, this part analyses the legislative attitudes of the criminal preparation of various countries, the legislative mode of criminal preparation of various countries, and the penalty principles of criminal preparation. The conclusion is that only combining the legislative attitudes of no penalty, the legislative mode of the general provisions and the specific provisions with the necessary reducing principle, can we construct a scientific legislative mode of criminal preparation.Part 2, The legislative problems of criminal preparation of our country. This part is the focal point of this dissertation and is divided into four parts. First, this part analyses the defects of the provisions of criminal preparation of our criminal law. The author points out that the legislation has subjective tendencies and does not conform to the principle of legality. This section also discusses the unreasonable of the concept of criminal preparation for the part three of the article. Then, combining the analysis of part one, this section discusses the defects of the provisions of criminal preparation of our criminal law and deeply explains the legislative reasons causing this situation.Part 3, Perfecting the legislation of crime in preparation. This section explains the measures of improving legislation and points out that we should adopt the general provisions combining with the specific provisions. Based on the analysis of the first two parts, I think we should distinguish the preparatory behavior.We can divides it into criminal behavior and non-criminal behavior. The criminal behavior should be punished but the non-criminal behavior can adopt non-penalty means or the means of moral education.