The Implementing Of Preparatory Behavior And Its Restrictions

The implementation of preparatory action is a legislative model that the preparatory act of some crimes is independently stipulated as a crime in the specific provisions of criminal law and given an independent statutory punishment.The implementation of preparatory action makes the criminal law protection of legal interests advance to the stage of crime preparation.In this way,people's growing demand for security in a risk society is met.The implementation of preparatory action embodies the state's criminal policy of early and strict protection about major legal interests,and it has become a legislative trend.But there are also some drawbacks in the implementation of preparatory action.It contains the risk that the power of punishment would expand beyond the necessary limit.Therefore.the implementation of preparatory action should have its necessary limits.It is necessary to discriminate the semantics of Related words in order to study the implementation of preparatory action,including the connection and difference between preparatory act and some concepts such as crime preparation status and perpetrating act.By distinguishing relevant concepts,the implementation of preparatory action can be defined as a legislative model in which the preparatory act is independently stipulated as a crime in the specific provisions of criminal law.In essence,the implementation of preparatory action is legal fiction,on the Infringement of legal interests,it is also an abstract dangerous crime.This paper also discusses the present situation and trend of the implementation of preparatory action.Aim at its present situation,firstly,from a national perspective.This paper lists and combs continental law legal system represented by Germany and Japan,also Anglo-American law system and China about the legislative status of the implementation of preparatory action.Secondly,From the perspective of specific criminal acts,taking the implementation of preparatory action in terrorist criminal activities,cyber crime and Crime of Endangering National Security as an example,this paper discusses the current situation of the implementation of preparatory action.Aim at its developing trend,by analyzing and summarizing the legislative development of the implementation of preparatory action in other countries,as well as the legislative development of the implementation of preparatory action in China from the Criminal Code of 79 to the Amendment to the Criminal Law(9),it is concluded that the implementation of preparatory action has become a legislative trendIn theory.there are not only legitimate basis but also some drawbacks in the implementation of preparatory action.Specifically,the implementation of preparatory action is based on some legitimacy:The advent of risk society provides the background of the times for it:The criminal policy of tempering justice with mercy provides a policy basis for it;The Theory of General Active Prevention and Dualistic Behavioral Valuelessness Theory provides a theoretical basis for it.However,there are also a series of problems in the implementation of preparatory action,such as the destruction of the criminal law system,the excessive expansion of penalty power and so on.Therefore,the implementation of preparatory action should have its limitations.Firstly.the criminal law has its own boundaries.Principle of infringement of legal interests and principle of the last coercion divide the boundaries of criminal law.The division of the boundary about criminal law provides a theoretical basis for the restrictions on the implementing of preparatory behavior.In reality,the implementation of preparatory acts exceed the limits of necessity,which has resulted in a series of problems,such as the excessive expansion of penalty power,the reduction of citizens' individual freedom and rights.the weakening about the authority of criminal law,and the unreasonable allocation of judicial resources.All these provide the necessity for the restriction on the implementation of preparatory action Secondly,restrictions should be imposed on the implementation of preparatory action,including the expansion of criminal law should not be too pre-emptive;Exhaustion of other non-criminal law means;On the occasion of "reciprocity of rights",caution should be exercised in conviction and punishment;The principle of accountability and the principle of proportionality.