Research On The Criminalization Of Preparatory Act

While the legitimacy of punishing upon preparatory criminals in form,in theory or practice,is greatly questioned,the punishment upon preparatory criminals in substance is recognized by legislative and judicial organ due to definiteness of its action and requirement of the legal interest's protection.In view of this,the Amendment ? to the Criminal Law of the People's Republic of China was innovatively added an independent preparatory crime based on the specific requirements of the legal interests' protection,he innovative set up independent preparatory crime,specifying some preparatory crimes as independent types of crime to achieve the aim of individual punishment.This mode of legislation is also called for criminalization of preparatory act,and the preparatory crime criminalized is generally included into preparatory crime in substance.Criminalization of preparatory act serves as an effective method to make up theoretical defects in term of preparatory crime in the present China.It generally embodies the strictness and earliness of legal interest's protection,and the modest and restrained principle of the criminal law in part compared with punishment mode for preparatory criminals in conventional form,following the requirement of developing criminal law in a law-based society.But it must be noted that our country is currently studying on independent preparatory crime,which remains further exploration and improvement in theory.Starting from this perspective,this article makes certain discussion upon criminalization of preparatory act from the following five aspects,aiming to provide a beneficial reference for the perfection of criminal legislation and judicature in our country.The first part of the article makes a general investigation and analysis upon criminalization of preparatory act,including its concept,classification and nature.It leads to the priority of this article while specifying clear theoretical orientation.The second part attaches great importance upon analysis of attitude and punishment on preparatory act in foreign countries,indirectly supporting criminalization of preparatory act referred in this article and providing experience and lessons for innovating legislation for the punishment of the preparatory act as well.The third part explains the legislative basis of the criminalization of preparatory act in criminal legislation in our country from the requirements of current legislation,the legal interests' protection and prevention as the center of the penalty purpose,which embodies the reasonable dual-value balance of the criminal law punishing crime and protecting legal interests.By reflecting on the current legislation,the fourth part describes the problems existing in punishment mode of preparator crime in our country and provide direction for the future legislative establishment.The fifth part,from the aspects of principle and concrete operation,put forward suggestions for legislation of criminalization of preparatory act in our country.From the author' point of view,the legislation of criminalization of preparatory act must conform to the principle of modest crime,the significance of legal interests and coordination of criminal and legal functions.Specifically,it should be clear that preparator act cannot be punished in principle;the punishment of further strictly preparatory act shall be explained by the law and follow the necessary constraints.