Research On The Application Of The Provisions Of The Reduction Or Exemption Of Criminal Discontinuation In China

At present,the criminal law scholars in China have not conducted in-depth theoretical discussions on the application of the provisions on the punishment of criminal discontinuation in China,which leads to the confusion in the judicial practice of the provisions on the punishment of criminal discontinuation in China,which may lead to a situation in which criminal sentencing is not standardized and the defendant's legitimate rights and interests are harmed.Thus,this article will clarify the provisions on the punishment of criminal discontinuation in China,and use empirical research methods to summarize the applicable dilemma of the application of the provisions on the punishment of criminal discontinuation in China,and based on a systematic analysis of the applicable dilemma summarize the reasons for the application of the provisions on the punishment of criminal discontinuation in China.Finally,the countermeasures for solving the dilemma of the application of the provisions on the punishment of criminal discontinuation in China are put forward,in order to deepen the theoretical research on the application of the provisions on the punishment of criminal discontinuation in China.In addition to the introduction and conclusion,the full text is divided into four parts,about 45,000 words,the main contents are as follows:The first part is the legislative evolution and content analysis of the provisions on the punishment of criminal discontinuation in China.The provisions on the punishment of criminal discontinuation in China has gone through the development process that from “exemption from punishment” to “can be exempted from punishment” and then “should be exempted or mitigated”,and finally determined that “if no infringement has been caused,should be exempted from punishment;if infringement is caused,should be mitigated from punishment”.Among them,“should be exempted from punishment” means that when the perpetrator meets the characteristics of criminal discontinuation and “has not caused infringement”,the judge shall apply the legal effect of the exemption punishment to the perpetrator;“Should be mitigated from punishment” means that when the perpetrator meets the characteristics of criminal discontinuation and “causes infringement”,the judge shall reduce the sentence to a penalty and apply the penalty to the perpetrator.The second part is the investigation of the dilemma of the application of the provisions on the punishment of criminal discontinuation in China.The dilemma of the application of the provisions on the punishment of criminal discontinuation in China mainly includes the following three dilemmas: the first dilemma,the application rate of the provisions on the punishment of criminal discontinuation in China is extremely low;the second dilemma,the application reason for the provisions on the punishment of criminal discontinuation in China is simple;In the third dilemma,the applicable standards for the provisions on the punishment of criminal discontinuation in China are confusing.The third part is the analysis of the reasons for the application of the provisions on the punishment of criminal discontinuation in China.The analysis of the reasons for the application of the provisions on the punishment of criminal discontinuation in China mainly includes the following three reasons: the first reason,the prevalence of severe punishment and the theory of negative general prevention theory and the concept of heavy punishment Is universal in the judicial practice of our country;the second reason;the neglect of the sentencing reasoning mechanism and the applicable reason provided by the judge when applying the provisions on the punishment of criminal discontinuation is generally simple;the third reason is the neglect of the basis of the reduction or exemption of criminal discontinuation and the discussion on the applicable standards for the provisions on the punishment of criminal discontinuation is not based on the basis for the basis of the reduction or exemption of criminal discontinuation.The fourth part is the solution to the problem of the application of the provisions on the punishment of criminal discontinuation in China.The solution to the problem of the application of the provisions on the punishment of criminal discontinuation in China mainly includes the following three schemes: the first scheme,the adherence to the modest restraint principle of the criminal law;the second scheme,the perfection of the sentencing reasoning mechanism that the simplification and diversion of the sentencing reasoning mechanism and the supervision of the sentencing reasoning mechanism in many aspects;the third option,the discussion on the applicable standards for the provisions on the punishment of criminal discontinuation is based on the basis for the basis of the reduction or exemption of criminal discontinuation and the meaning of “infringement” in the criminal discontinuation should be the materially serious harm results in the sense of criminal law.