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On The Punishment Scope Of Attempted Crimes In The Criminal Law Of China

Posted on:2020-08-10Degree:MasterType:Thesis
Country:ChinaCandidate:W J ChenFull Text:PDF
GTID:2416330602959552Subject:Law
Abstract/Summary:PDF Full Text Request
The general principles of criminal law of our country adopt the general legislative mode for the punishment of attempted crime.The specific provisions of criminal law of our country do not specify the scope of punishment of crime,but the judicial interpretation regulates the punishment of some attempted crime.This leads to the problem of how to divide the punishment scope of attempted crime in China.In theory,the scope of punishment for attempted crime is not clearly defined,which leads to different standards of handling attempted crime cases in judicial practice.Based on the different interpretation of the specific provisions of criminal law,the different choice of punishment basis for attempted crime and the different definition of the elements for the establishment of attempted crime,the theoretical circle of our country has formed the dispute of the theory of exclusion of negligent crime,the theory of direct intentional crime and the theory of attempted felony.The theory of exclusion of negligent crime claims that the punishment scope of attempted crime in China should cover all intentional crimes except negligent crime.According to the theory,intentional crime has the form of attempted crime,which will expand the punishment scope of attempted crime,lead to the abuse of penalty power,and conflict with the basic principles of criminal law,such as the adaptation of criminal responsibility and punishment.The theory of direct intentional crime denies the existence of attempted form in indirect intentional crime,and holds that the punishment scope of attempted crime in China is limited to direct intentional crime.The theory of attempted felony divides each crime into felony and misdemeanor according to the degree of social harmfulness.It holds that only the form of attempted felony should be punished,and other forms of punishment should be applied to the attempted misdemeanor instead of punishment.This theory is in line with the principle of modesty and proportionality in criminal law,which is conducive to further limiting the scope of punishment of attempted crime.However,how to divide the standard of felony and misdemeanor is an important issue for judicial practice to use the theory.First of all,it is the accomplished elements or the establishment elements of the crime described in the specific provisions of criminal law.Secondly,the reason why the criminal law should punish the attempted crime is based on the subjective attempttheory of the criminal's subjective intention,or the objective attempt theory of the objective danger caused by the attempted crime to the legal interest protected by the criminal law,or the compromise attempt theory of the violation of the code of conduct and the subjective dangerous meaning expressed by the attempted behavior.Compared with the single one sidedness of the subjective attempt theory and the objective attempt theory,the compromise attempt theory is more reasonable.Finally,there are different definitions of the elements of the establishment of the attempted crime in the theoretical circle,which are directly related to the time starting point of the establishment of the attempted crime,the boundaries between the attempted crime and the accomplished crime and the suspended crime.Based on the analysis of the causes of the above disputes,this paper holds that the scope of punishment for attempted crime in China should be limited to the direct intention which does not take the harmful result as the constitutive element of the crime,on the basis of affirming that the specific provisions of the crime belong to the constitutive element of the crime,that the basis of punishment for attempted crime is the theory of compromise and that all the elements of the constitutive element of attempted crime should be identified from both subjective and objective aspects According to this conclusion,we return to the specific types of crimes,and analyze the types of crimes that are still controversial in the identification of attempted crimes.
Keywords/Search Tags:Scope of punishment for attempted crime, Basis of punishment for attempted offense, Elements of establishment of attempted crime, On the attempt to compromise
PDF Full Text Request
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