On The "Damage" Of Criminal Suspension Research

Article 24,paragraph 2,of the Criminal Law of the People’s Republic of China provide: "If there is no damage to the suspended criminal,the punishment shall be exempted;if the damage is caused,the punishment shall be mitigated." The provision establishes that the punishment standard for the suspended criminal is "causing damage".However,what is the definition of “damage” in the article;what is the nature and how is it produced? How should the standard be used in practice to solve the problem of sentencing for suspended crimes? Focusing on these questions,this article takes the provisions of the law as the starting point,uses the method of hermeneutics,and studies related issues and cases,in the hope that it can define a clear boundary for the concept of “damage” in the suspension of crimes,and provide for judicial practice.The right thinking logic and operating plan.In addition to the introduction and conclusion,this paper is divided into the clarification of the "damage" quantity,the clarification of the "damage" quality,the cause of the "damage",the correction of the logical order of the "damage" thinking,and the prospects for the suspension of the penalty system in China.,about 30,000 words,the main content:In the first part,the amount of "damage" is clarified.That is to say,the extent to which "damage" should be reached can be called "damage" in the suspension of the crime.Explain the amount of "damage" by comparing the pros and cons of two different definitions of "damage." The first section introduces fuzzy comments;the second section introduces substantive explanations.The more vague comments and substantive explanations define the concept of “damage”,basically agree with the statement of substantive explanation,but it also needs to be strengthened: “damage” is in the sense of criminal law and only when the act meets certain felony The conditions for the establishment of a suspended offense,while at the same time constituting a sin of a misdemeanor,can be determined to cause damage.At the same time,in practice,it should be applied flexibly and not mechanically,and the use of“damage” should be considered.It is necessary to consider the national factors of punishment and criminal policy.The second part,the "damage" quality is clarified.That is,the manifestation of "damage" and the causal relationship of related behaviors.Here,the structure of the total-minor is used.The first explanation is that “damage” is a narrow sense of damage rather than a generalized damage.A narrow sense of damage refers to damage that has criminal law significance and is prohibited by criminal law.Secondly,“damage” only includes The tangible results do not include the dangerous state;once again,the “damage” only includes the material results,not including the non-material results;the final “damage” occurs in accordance with the general person’s prediction possibility,and the “damage” targets the criminal law.The provisions of the provisions have a causal relationship with previous actions.The third part,the reason for the "damage".This section is divided into three sections.The first section is to explain the relationship between the conduct and the suspension behavior.That is to say,the effect of "implementation behavior" on the punitive nature of suspension behavior.Adopting the comparative method of research,in the overall observation method(the attempted behavior and the suspension behavior are considered as one,is a parallel relationship)and the individual action law(the attempted behavior and the suspension behavior are regarded as two independent acts,is a kind of Choosing a relationship)to make a choice,combined with the provisions of China’s laws,and based on the value of the attempted act and the act of suspending;to suspend the structural features of the attempt;the scope of the criminal law function and the requirements of the judicial practice,should choose the individual action observation method,and consider the crime behavior It is not a parallel relationship with the suspension behavior,but a relationship between the two.The second section is that the act of causing damage can only be the “criminal conduct” before the suspension can not be a preparatory act,nor can it be the act of suspending itself.The third section is a description of the penalties for the attempt to increase.Disagree with the punishment according to the guilty of misdemeanor,it should be classified according to the form of crime in the framework of thesuspension of serious crimes: in the case of co-opetition,the punishment should be directly suspended according to the original crime;In relation to the relationship(involved criminals,absent offenders),according to the initial criminal offense and the conviction of a sin.For the handling of the behavior after the suspension or the handling of the sinful acts caused by the suspension of the act itself,it is necessary to insist on several crimes and penalties.The fourth part,the correction of the logical order of "damage" thinking.Clarify the Marxist view of law,use the dialectical relationship of quality,and oppose the wrong way of discussing the quality and quantity of "damage" in the past.The logical order from quantity to quality to quantity should be adhered to.It is clear that the“damage” from the generalized damage to the suspended crime is divided into two stages: the quantity of the first stage changes to the stage of qualitative change,that is,insists on the general meaning of “damage” first.Only the initial generalized“damage” The extent to which the amount of serious social harm is reached is the“damage” meaning(narrow damage or criminal law damage)(the first qualitative change point)that can be considered as a suspension.In the lowest degree,the“damage” is determined so that it will never exceed the quantitative accumulation of the next quality(Crime accomplishment).We judge the degree of mitigation according to the distance between the “damage” and the second qualitative change point(Crime accomplishment).The fifth part is about the prospect of China’s suspension of punishment system.This part explains the superiority of China’s current suspension of punishment system,opposes the "abolition theory" advocated by some scholars,and advocates adhering to the existing law and using hermeneutic methods to explain the meaning of "damage" is the correct solution.