Research On The Judgment Criterion Of Automaticity Of Discontinued Criminal

The automaticity of discontinued criminal refers to the perpetrator gives upcrime based on his own will. The research on judgment criterion of automaticity ofdiscontinued criminal is to solve the problem on which standard we should use tojudge whether the perpetrator gives up the crime based on his own will. The standardis related to whether the discontinued criminal is established, it is of great significance.At home and abroad there are many different theories about the judgment criterion ofthe automaticity of discontinued criminal such as Frank Formula, Limited SubjectiveTheory, Objective Theory, New Objective Theory, and Comprehensive Theory. Thesetheories have their own advantages and disadvantages. The Frank Formula based onperpetrator’s subjective understanding is a reasonable view. It is not only good forparticular precaution but also encourages the discontinuance of crime. At the sametime, this theory is indefinite when applied in practice. The Limited SubjectiveTheory requires that the perpetrator has a subjective generalized regret, it’s arestriction on perpetrator’s motion. This theory is not only consistent with the spirit ofthe legislation to encourage stopping crime, but also guarantees the penalty fit thecrime. But because of no legal basis the requirement of generalized regret will notonly confuse the moral check and automaticity, but also narrow the scope ofdiscontinued criminal. The Objective Theory takes the general standard to judgewhether the perpetrator stops the crime on free-will. This standard can highlight thefairness of penalty and be used in practice effectively. It will play an important role ingeneral prevention. However, due to the general standard itself being undefined, theconclusion of it is uncertain. Meanwhile, this theory has defects on methodology. TheNew Objective Theory has combined advantages and disadvantages of The FrankFormula and The Objective Theory. The Comprehensive Theory is applicable, and itsconclusion is reasonable, but it is also uncertain in application and has defects onmethodology. To judge the automaticity of discontinued criminal, we should take thesubjective position, and consider the normative meaning of the criminal behaviorappropriately. If the perpetrator thinks that he is able to continue to commit a crime oraccomplish a crime objectively, but he abandoning the original criminal intentionthoroughly based on his own will, and returning to legitimate state, his behavior isautomatic. The perpetrator can continue to commit a crime or accomplish a crime objectively requires that there are no absolute obstacles. Absolute obstacles includenot only the external factors such as objective environment, others and victims, butalso internal factors such as cognitive mistakes, scarce capacity, mental and physicalbarriers. The essence of the automaticity is for the perpetrator to give up his originalmens rea based on free-will. In this case, the perpetrator has an inner change which hedenies or weakens his original mens rea, and turns it into his determination toabandon the crime on free-will. Generalized regret is not needed in the subjectiveaspect of the perpetrator, because of stopping a crime automatically requires only thefact to give up a calculated crime rather than the ethical motivations. To insure theautomaticity is established, the perpetrator has to abandon the original criminalintention thoroughly, and cut off the contact between his subjective will and hissubsequent behavior. Thoroughness is a logical extension and necessary supplementfor the automaticity of discontinued criminal, only the perpetrator abandons his mensrea thoroughly, can we prove the automaticity is actual existence. If the perpetratorgives up a criminal intent and produces another mens rea at the same time, weshouldn’t admit that it is a situation of discontinue a crime, because the perpetrator’ssubjective malice is not reduced in this case. So that the existence of automaticityrequests the perpetrator’s will return to the legitimate state. While we use theCompromised Theory to solve hard problems in judicial practice, it will arrive at areasonable conclusion.