Research On The Legislation Mode Of Preparatory Act Criminalization In China

Our country is in the period of social transition,all kinds of new social contradictions emerge in an endless stream,and it is in line with the basic situation of our country to criminalize the behavior with social harmfulness.Based on the acknowledgement that the preparatory act is punishable,each country has also regulated its legislation and formed the criminal legislative model of the preparatory act with its own characteristics.Based on the realistic demand of the legislation normalization of preparatory act criminalization in our country in China,this thesis adopts theoretical and judicial practice research results about the legislative mode of preparatory act criminalization in China and foreign countries reasonably,and proposes improvement solution to accord with the national conditions of our country,thus to promote the theory and practice of the criminal law for preparatory act criminalization of China.In addition to the introduction and conclusion,the thesis is divided into the following four parts:The first part is about the basic theory of the legislation mode of preparatory act criminalization.First of all,the connotation and characteristics of preparatory act in criminal law theory and legislation of various countries is analyzed and compared.On this basis,the preparatory act was defined as an objective harmful act,which is the objective movement that creates the convenient conditions for the commission of crime but is not reached for the reasons other than the will of the perpetrator.Secondly,the concepts of preparatory act,preparatory crime,and crime preparation are analyzed,and we point out that preparatory crime is the criminalized preparatory act,and both of them are the objective behavior elements of crime preparation.In addition,by discriminating the preparatory act from the act of perpetrating,and analyzing the positive theory,negation theory,and eclectic theory on whether the preparatory act has the nature of act of perpetrating,the author affirms the eclectic theory that the preparatory act has the character of relative practice.According to the criminal theory and legislative provisions related to the preparatory behavior of the world,the author analyzes the evaluation mechanism and legislative mode of preparatory act in various countries.For the evaluation mechanism of preparatory behavior,the author points out that there are two evaluation mechanisms,namely the mechanisms of criminalization and decriminalization.The former is mainly based on the objectivist criminal law theory,the difficulty in judicial practice to prove the criminal intention and the individual standard of legal values,while the latter is mainly based on the subjectivist criminal law theory to defend the national criminal policy of the society,amended elements of crime and social-based legal values.Based on the viewpoint of unity of subjective and objective view,the author is in favor of the evaluation mechanism of preparatory act criminalization and the legislation modes in the world are summarized.They are defined as the non-implementation mode outlined in the general rules,the implementation mode in the specific provisions,the implementation mode of non-perpetrating act outlined by the combination of general rules and specific provisions,and the non-implementation mode outlined by the combination of general rules and specific provisions,with and their concepts illustrated respectively.The second part is the current situation and evaluation of the legislative modes of preparatory act criminalization in China.First of all,the present situation of the legislative mode of the preparatory act criminalization in our country is analyzed,based on the unified social harmfulness subjectively and objectively of the preparatory act,the amended constitutive elements of crime for the preparatory act,and the preemption of legal interests protection in the risky society.Secondly,the foundation as well as merits and drawbacks of the non-implementation mode outlined in the general rules and the implementation mode of non-perpetrating acts outlined by the combination of general rules and specific provisions in China are analyzed.In general,the non-implementation mode outlined in the general rules is contrary to the concept of human rights,the modesty of criminal law,the principle of legally prescribed punishment for a crime,and judicial practice.The drawback of the implementation mode of non-perpetrating acts outlined by the combination of general rules and specific provisions lies in the fact that the expansion of the criminal circle infringing upon the legitimate rights and interests of the individual and the unlimited expansion of the scope of punishment due to informality and non-limitation of the preparatory act itself,and the punishment of the preparatory act for the preparatory crime is also controversy in the field of criminal law.The third part is the analysis and reference of the legislation modes of preparatory act criminalization in foreign countries.On the basis of summing up the legislation modes of preparatory act criminalization of foreign countries,this thesis analyzes and compares the advantages and disadvantages of the three main kinds of legislation modes of preparatory act criminalization.On this basis,the author points out that when we draw lessons from the foreign legislative modes of preparatory act criminalization,we should pay attention to defining the scope of preparatory acts in the general rules.On the other hand,attention should be paid to defining the boundaries of preparatory acts when specified in the special provisions,usually limiting the types of preparatory acts to crimes of partial state affairs,crimes that are seriously harmful to public safety and to the vital interests of society and citizens,such as endangering national security,arson,explosion,homicide and so on.The fourth part is the improvement of the legislation mode for preparatory act in our country.Based on the above analysis and the beneficial reference to the legislation modes of preparatory act criminalization in foreign countries,the author puts forward the basic idea of perfecting the criminal legislation mode of preparatory act in our country.Firstly,defining the concept of "preparatory crime" and the evaluation standard of social harmfulness,thus to limit the scope of the non-implementation mode outlined in the general rules.Secondly,determining the types of legal interests violated by the punishable preparatory acts and specifying the specific types of these acts,thus to clarify the boundaries of the implementation mode of non-perpetrating acts outlined by the combination of general rules and specific provisions.In addition,introducing "subject to the special provisions of the sub-rules" into the general provision,thus to enable imposition of penalties for preparatory acts defined as serious crimes in the special provisions,and,the provisions of investigating criminal responsibility for serious crimes under special circumstances is also reserved for the general rules at the mean time.