Study On The Voluntary Of Crime Discontinuance

Crime discontinuance is an important law institution in China. Voluntariness is one of the characteristics of crime discontinuation that the performance behavior person consciously will crime possible, but based on his own consciousness stopped the crime, or took the initiative to prevent the harmful results. The criminal policy theory, and the penalty purpose theory, and theory of forgiveness. or reward theory, provide the legislative theory basis for the crime discontinuation. For this reason, we must clear the relationship between the legislation basis of giving lenient treatment to discontinued criminal and the voluntary. To analysis the essence theory of the crime discontinuation, it will be found that the offenders’ subjective attitude to the unfinished crime is the essence reflecting of the crime discontinuation. Therefore the voluntary is the essence of the theory of crime discontinuation.The psychological standard of judging the voluntary in the crime discontinuation mainly contains the subjectivism, the objectivism and the objective subjectivism. The subjectivism thought the perpetrator stopped the unfinished crime was not voluntarily, Subjective motives included frank formula self-discipline said the value of life but because of the appearance of the external obstacles. The objectivism thought the perpetrator stopped the unfinished crime was based on his own will, is based on the general idea for social voluntary to objective criteria for judgment. The objective subjectivism was based on the subjectivism, and according to the objectivism to judge the voluntary of the perpetrator stopped unfinished crime.The study of the normative standard judgments of the voluntary in the crime discontinuance is to make up the shortcomings of psychological judgment standard. The normative subjectivism is moderate limit the motivations in the subjectivism, if the perpetrator stopped the unfinished crime was based on generalized inner repentance, ashamed, or confession mental disorder, it can be considered as based on his own will to stop the unfinished crime; the theory of the rationality of the perpetrator thought the perpetrator giving up the unfinished crime was based on his rational and carefully consider, and the perpetrator’s sense is the judgment standard of voluntary, not the psychology; the theory of the inner morality of law put the perpetrator’s sense as the judgment standard of the voluntary, to illustrate that the penalty should not only based on the moral as the judgment standard to deduce the results, which can fully embody the normative part of law; the theory of unreasonable decision claims that the perpetrator started a crime without any emotional fluctuations, and then give up the crime without any reasonable excuses for discontinuation of a crime, that shows the perpetrator’s voluntary, and it offers a clear regulatory standard to specific establish.The judgment standard of the voluntary of crime discontinuance, judging from the psychology of the perpetrator that the person to give up crime is the choice of their subjective will, but judging from the normative standard of voluntary that the person is based on what they perceive the external facts. Clearly whether previously suspended reason is our country legal norms to judge more recognized has the theoretical and practical supports. There is a accurate standard for the judgment of the voluntary situations of the crime discontinuance in judicial practice, mainly from the offenders giving up crime based on conscience condemnation, sympathy, ethical morality, and due to factors such as religion and superstition; the perpetrator giving up the crime for the barriers that the goal object does not exist, mistakenly believed, crime causes disappeared, or afraid of being arrested; and using illegal means to achieve legal purpose, to judge whether it established crime discontinuance or not. Figure out the specific circumstances can help voluntary theory more mature, and the judicature recognition more accurate.The voluntariness of crime discontinuance is mainly about the voluntariness. The present faced theory and practice problem is the basic one of the whole theoretical system of crime discontinuance, and it is also the core one. It needs to study the basic theory of the crime discontinuance to figure out the importance of the voluntariness for the discontinued criminal. And vice versa, it makes the criminal law theory and judicial practice co-evolving, and provides a theoretical and practical judgment standard of convicting and sentencing for the judicial authorities, and lays a solid foundation for the theory and the practice.