Determination On Automaticity Of Discontinued Crime

According to Article 24 of the Criminal Law,we know that automaticity is a necessary condition of confirming discontinued crime.There has been continual controversy in theory about how to confirm automaticity.Theories of judging automaticity can be divided into psychological judgment,normative judgment and comprehensive judgment.Psychological judgment advocates judging whether the actor has no choice but to suspend from the psychological empirical aspect.Normative judgment emphasizes the actor’s suspension must be accord with the legal purpose,otherwise it has no automaticity.Comprehensive judgment combines with the judgment of psychology and norm,advocating normative evaluation based on psychological judgment.Only if conforming to the psychological and normative judgment at the same time,it has automaticity.In the traditional theory,subjective theory,objective theory,the eclecticism and limited subjective theory can be classified into psychological judgment.The popular theory and judicial practice both advocate the subjective theory.In the same case,different theories will come to different conclusions.By comparison of application of these theories,we’ll see that psychological judgment improperly expand the range of confirming automaticity;too much normative evaluation would ignore the nature of automaticity;the pattern of comprehensive judgment is acceptable but the specific criteria is worth discussing.In summary,the cognizance of automaticity should adopt the comprehensive judgment to make up for the defects of the psychological judgment and the normative judgment.On this basis,considering the original meaning of the automaticity,psychological judgment should still adopt subjective standards,then starting normative judgment.Normative criteria depend on the reason of reducing or remitting punishment and legal consequences of discontinued crime.In this sense,it is necessary to advocate the “amendatory norm subjective theory”.It advocates normative judgment based on the subjective theory,and revises criteria to: when the actor’s suspension only shows the negation of previous behaviors,and he gives up the crime completely,it can be a qualified automatic suspension and he will get the grace of reducing or remitting punishment.