The Criteria On Automaticity Of Discontinued Crime In China

“Automaticity”,as the most important feature in the four features of discontinued crime,is also the key to the distinction between the discontinued crime,attempted crime and the preparatory offense in the theory and practice. For the judgment of automaticity,the domestic and foreign theorists put forward dozens of opinions,which are very complex and each has its advantages and disadvantages.there are also a lot of problems to be solved in the judicial practice. Both theory and practice decide that we must study this problem in-depth.Then revise the existing theory or put forward a new standard to delimit the scope of the establishment of discontinuade crime reasonably.This paper based on the the reduction of punishment of discontinued criminal in our country,drawed on the experience of foreign countries, put forward the normative evaluation standard based on the subjective theory.The paper covers four parts:In the first part,the paper will explain concepts and punishment mitigation or exemption foundation of automaticity discontinued crime,and the impact of basis to“automaticity” judgment.Paper points out that The automaticity should both have the psychological and normative connotation,and a combination of liability reduction and policy doctrine should be adopted for the mitigation or exemption. Besides,the foundation plays a role of theoretical direction and restriction for “automaticity” judgment.In the second part,the thesis will analyze the advantages and disadvantages of“automaticity” judgment theory in China,and points out existing problems in domestic judicial practice with case studies. It then concludes that there is problem of inconsistent judgment and normative evaluation as the subjective theory is largely adopted in theories and practices today.By comparing theories of China with that of other typical countries under continental law system.In the third part,by studying the theory and judicial practice of continental legal system represented by Germany and Japan and other typical countries, mainly introducing and evaluating the five types of theory of Germany and Japan, reach a conclusion thatautomaticity should be judged by normative standard.In fourth part,the thesis will put forward normative judgment based on the subjective theory by correcting existing theories. In other words,criminal with “the ability of offence”gives up offence which could have continued or prevents the crime result,and the criminal should be subjectively regarded with “the reversion of criminal mindset”.