Study On Independent Crime Preparation

Close attention was paid to independent crime preparation in China from the 9th Amendment of Criminal Law.Prior to that,crime preparation is provided in article 22,General principles of criminal law,as "Preparation for a crime refers to the preparation of the instruments or the creation of the conditions for a crime.An offender who prepares for a crime may,in comparison with one who completes the crime,be given a lighter or mitigated punishment or be exempted from punishment."The 9th Amendment of Criminal Law adds a new crime,i.e.the crime of preparing for terrorism,which converts preparatory acts of terrorist crime to perpetrating acts of the crime of preparing for terrorism through the specific provisions of the criminal law.The separation of the crime breaks the tradition of crime preparation in China,and is given a name of independent crime preparation by scholars.Because of this,there was no in-depth research on independent crime preparation in criminal law academia before.No systematic theoretical achievements have been gained on the concept,establishing basis as well as some identification theory for independent crime preparation.Therefore,research on the independent crime preparation should be done from these areas,to provide support and guidance to legislation and judicial practice.In the society full of risks,most civil law countries in the world have already established independent crime preparation in their special provisions of criminal law to protect significant legal interests.China has also entered the risk society,people's fear of risk in the risk society also makes the pursuit of security more intense,and starts to hope that law can effectively control the risk before it yields any result.Independent crime preparation not only reflects criminal law's early intervention on violations of important legal interests,but also reflects the strict protection of major legal benefit in China,and can effectively control risks.This is also an important basis for setting up independent crime preparation in China's criminal law.In addition,the conflict between the common punishment principle in the general principles of criminal law in China and the less punishment in judicial practice of crime preparation reflects the rational choice of the judiciary.Compared to the controversial common punishment principle,rational choice of the judiciary is more in line with the contemporary criminal law theory and principles,which should also be reflected in the legislation,i.e.providing the corresponding crime of independent crime preparation.In addition,research on the independent crime preparation should also focus on the determination of independent crime preparation,including the determination of act of perpetrating,stopping patterns and complicity patterns.Preparatory acts and perpetrating acts are quite different concepts;in general there is clear distinction between the two.But after the independent crime preparation was provided in criminal law,a provided preparatory act may transform to a perpetrating act.Based on analysis of preparatory act and perpetrating act,this article is to clarify causes and processes of the original preparatory acts transforming to the perpetrating act in independent crime preparation,and to essentially determine the nature of uncategorized behaviors.In the stop form of independent crime preparation,the article is mainly to discuss the completed,attempted,preparatory and discontinuation forms of independent crime preparations.In China's criminal law theory,"Act to execute a crime" is the core condition to form completed and attempted crime.Therefore,the article is to identify the completed and attempted form of independent crime preparation by comparing the different theories of "Act to execute a crime" to determine the moment of "Act to execute a crime" in independent crime preparation.As for the preparation for a crime and discontinuance of a crime,different countries have different regulations and therefore we will illustrate whether to establish the preparation and discontinuation of the independent crime preparation and whether it should be punished based on the present legislation and traditional theory of our country.In the accomplice form of independent crime preparation,the article will first discuss whether the joint principal is established based on the subordination theory and the common act theory of accomplice.Meanwhile,some helping acts are hard to distinguish from perpetrating acts in the independent crime preparation in practice.This article will clarify the line between helping acts and perpetrating acts in independent crime preparation based on traditional theories,to distinguish between accessory and joint principal.In the accomplice form,apart from joint principal and accessory,the article will also determine the establishment of instigator based on traditional theories,and discuss the two conditions when the perpetrating acts are inconsistent with the content of abetting.