A Study On Punishment Scope Of The Attempted Crime Of Amount

The punishment principles of the attempted offense in general part of our criminal law is not only against austerity of criminal law thought, but also conflicts with the quantitative elements in the concept of crime in our country. The judicial organs narrowed the punishment scope of the quantity prisoner uncompleted through the way of judicial interpretations promulgated, which although solved some questions in the judicial practice, but it still lacks the overall guidelines, because how to position the amount of elements in the crime constitution system still remains controversial, and the forms of the amount of elements in crimes is not the same. This article discussed the punishment scope and standard of quantity prisoner uncompleted and its research object is the judicial interpretation which has been promulgated by the judicial organs.This article, a total of more than 40000 words, is divided into 4 parts:Part one: The punishment of attempted crime of amount's current situation of the judicature and problems. Different from the civil law countries such as Germany and Japan, our country's legislative model is "qualitative and quantitative", while those countries are “Legislative qualitative, judicial quantitative” legislative pattern. For attempted crime the general provisions of our criminal law with penalty for the principle and no penalty for the exception. It is possible that the punishment scope for the attempted crime of amount is too large. The relevant judicial interpretations issued by the judicial organs have some danger depart from the spirit of the criminal legislation and the risk of misleading the judicial practice. Through the statistics and analysis of the criminal cases on China's judicial documents online, it is clear that among the ruled criminal cases of attempted crime of amount, most of the crime is already have the relevant judicial interpretations. There are some problems about the judicial interpretations, because it has different standard of punishment for attempted crime of amount and the scope of judicial interpretation is not clear even for the same crime and the judicial interpretations are ambiguous and overextended.Part two: Analysis on the dilemma about the penalty of attempted crime of amount. The reasons why the penalty of attempted crime of amount is in dilemma are that the general provisions of the criminal law do not conform to the judicial practice and the position of elements of amount in the composition of the crime is not clear and the concept of crime in our country has internal conflict. As the promotion of rule of law, the worries that the judicial experience is not rich enough and mature enough, which was concerned by the lawmakers at time of legislation, is gradually disappear. General and fuzzy legislation is gradually not consistent with the elaborating and sentencing individualized criminal legislation trend. Under the background which punishment and administrative penalty is in parallel, fuzzy legislation can't clear the applicable boundary of criminal law and administrative law. At the same time, the different positioning of elements of amount in the system of crime will affect the discrimination of crime and not crime also the scope of punishment.Part three: The theory construction for attempted crime of amount. In fact there are three kinds of punishment standards in the judicial interpretation, namely "the general punishment mode of attempted ", "the punishment model of the circumstances which are serious " and " the punishment model of three times with accomplished offense". Although the three kinds of standard for determination of the attempted crime of amount limited the scope of punishment in the process of judicial application, it is too sensitive to criminal policy and the standard of punishment is different that makes the standard not universal which was established by judicial interpretation. In criminal law theoretical circles, the existence scope of attempted crime and the establishment of the crime and the complete form of the crime have been studied in depth. After distinguishing the establishment of the crime and the completion of the crime, it is conducive to clear the border for punishment of the attempted crime of amount to explore the standard of the crime set by specific provisions of criminal law is a crime or crime accomplishment. By advocating the concept of attempted crime and evaluating the social harmfulness of the attempted crime of amount, it can solve the problem of attempted crime of amount whose punishment scope is too wide.Part four: A Study on the Paths of punishment for the attempted crime of amount. To further determine the punishment path of attempted crime of amount, we should discuss the current range and the actual range of the amount committed. It is reasonable to determine the punishment scope of attempted crime of amount, based on the theory of substantive standard that the attempted crime is punishable. The aggravated crime attempt is punishable. The attempt of the amount of basic crime is only in line with the standard of the form of crime, its social harmfulness is small, only applying the administrative punishment it can be enough to achieve the purpose of prevention and punishment and conform to the principle of criminal law. At the same time, evaluating the attempted form of the amount of crime, we should avoid to only think the theory of amount but make a comprehensive evaluation taking the amount priority and the plot complementary.