On The Punishment Range And Principle Of The Criminal Prepartion

As ordinary people become more and more familiar in the risk society, the risk of criminal law becomes a hot research topic of the criminal law field. In varying degrees, today’s criminal law is expanding its elements and sets up the pre-criminal punishment, and the punishment to the Criminal Preparation is a good example. At the main trend of global criminal law that the Criminal Preparation doesn’t get criminal punishment in principle, in China the legislative still holds on the provision of Soviet criminal law that the Crime in Preparation should be punished, 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 and becomes symbolic criminal law. So we should improve the legislation of the crime in preparation on the basis of the reflection about the legislation of the crime in preparation.On the basis of researching about the related judicial practice in China and 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 to the legislation of the crime in preparation. The part one of the passage is the summary about the criminal preparation, including its concepts, characteristics, classification and related issues. The part two of the passage using the method of comparison, 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. And the author reflects the principle in China that all the criminal preparation should be punished at the basis of the analysis above. The conclusion is that at the main trend of global criminal law that the Criminal Preparation doesn’t get criminal punishment in principle, in China the legislative, considering the needs of the community and judicial practice in China, should hold on the attitude toward criminal preparation that the criminal preparation is not guilty but make an exception that the criminal preparation get criminal punishment when the legislative mode of criminal preparation is strictly limited. The part three is about the punishing principles about the criminal preparation. In this part, researching the punishing principles about the criminal preparation of various countries, and the related provisions in China Criminal Law, the author considered that the legislative should decrease the punishment to criminal preparation in principle, considering the degree of harm to society of criminal preparation itself and the justifiability of the criminal justice system.The last part,in the basis of the reflection,we think that:in accordance with existing legal requirements, regardless of the use of criminal law to limit the interpretation method, or13of the Penal Code in accordance with the proviso a crime, or the basis of criminal proof of the Conflict between the standard of proof, we can not fundamentally eliminate the root of the predicament. We must know the root of the problem, and the reconstruction of the criminal legislation is necessary.According to the country under the rule of law principle, the principle of modern criminal policy needs as well as acts of criminal law, we must promote legislation to re-examine criminal preparation, determine the attitude of the principle of punishment legislation, and use the general and sub combination of legislative mode; reasonably define the scope of the punishment ranging from the preparatory acts is or not a serious crime and the risk level preparatory acts; at last, set up punishment principle reasonably-necessary reduction principle.