Theory Of Preparatory Act To Be Implementing

In order to protect legal interest in advance,preparatory act to be implementing is taken into the Amendment Nine in the area of terrorism and cyber crime,which add new crime called” preparing to implement terror crime” and “ illegal use information network crime”.The reason why shift from article 22 to specific rules is the advantage of the later over the former,and the later is named by substantial preparatory crime,while the former is preparatory in form.Substantial preparatory crime to some extent relieve the argument of crime in preparation and become the main method under preventative criminal view.To balancing the protection of legal interest and human rights,and not to be the functional crime,it is necessary to underpin and analyze the preparatory act to be implementing which can be beneficial for the times change and modernization of crime.The first part of this paper aims to define the research object of this paper,and the main content is to rethink and redefine the generalization of the scope of China's substantive preparations.The category of preparatory crime fully inherit from continental law system,and the result of this inheritance is that we ignore the difference of legislation mode and technique between them,which lead to the substantial preparatory crime existing anywhere in criminal law.There are inadequacies with the knowledge of expanding the,the main of these advantage is to lost the theoretical meaning of substantial preparatory crime.In fact,the reason lead to this phenomenon is that we undervalue the he binary methodology of value and facts,legislation and doctrine.We should value the normative methodology in order to establish the characteristic of preparation and normalization of substantial preparatory crime.Another difference from the continental law system is that besides the substantial preparatory crime in legislation our characteristic judicial interpretation system result in the substantial preparatory crime in justice,which answers to the change of society.However,it should deny this concept owing to the conflict original from the substantial preparatory crime,which conclude the break of principle of rule of law and principle of legality.Thus,preparatory act to be implementing equal tosubstantial preparatory crime,there is just difference in expression.The second part start from the theory of preparatory crime,which explain the rationality of it that include the gist of fact,theory and advantages over preparatory crime in form.As the first part says,there is still characteristic of preparation existing in substantial preparatory crime.The legislation do not prove the rationality itself,so it should look for the rationality from the other aspects.The realistic basis of substantive rationality lies in the complex social background of China's co-nature(rule of law state,welfare state and security state)characteristic rather than the extreme risk society.It is reasonable to adopt legislation to emphasize the characteristics of prevention of criminal law view and theory of conduct without value.In the process of adopting the theory of law and the theory of criminal policy,we should consider the extent to which the criminal law system can accept these theories.From legislative policy and motives,the biggest motive driving legislation patterns change is the defects of preparatory crime in form,but this does not mean that the future will abolish the "criminal law" article 22,which the article 22 can still play a supplement role in the responsibility evaluation.Since preparatory act to be perpetrating has certain rationality,so,in this paper,the establishment of the third part aims to identify the substantial preparatory crime category based on the legitimacy of the second part.Only those conforming to the second part on the basis of legislation belong to the real national one.On the one hand,discuss the standard for the substantive preparatory crime in the legislative level,including the internal control logic analysis of law doctrine and the external control of constitutional law.The internal control logic analysis of law doctrine is carried out with the basic principles of the theory of preparatory crime,the theory of dangerous crime,the theory of penalty and the unworthiness of the behavior.The external rationality is based on the principle of proportionality of constitution,and the regulation of behavior should be considered in terms of effectiveness and comparability.To implement the above proposition,on the other hand,it should try to limit and specify current judicial interpretation of substantial preparatory crime,which include the legal fiction one and not one.The legal fiction one ‘ s interpretation should abide by certain rule;Another one can affirm the preparatory act that is closely related to the implementing act with characteristic of implementing according to the substantial standpoint,method and aim.In the end,it is because of the dual characteristics of preparation and implementingthat makes it have unique value.Borrow law doctrine to analyze some issues to present its significance and deepen the understanding of the substantial preparatory crime,including the systematic position of purpose,the infringement of which law benefit,the substantial preparatory crime' s unfinished form,the form of an accomplice,and theory of quantity crime.