Research On The Implementation Of Preparatory Behavior

In order to better combat crime and protect human rights,our criminal law regulates the preparatory behavior of certain crimes in the establishment of independent crimes.This kind of legislative phenomenon is the implementation of preparatory behavior.It has increasingly attracted the attention of scholars.This paper conducts research through four parts,analyzes the legitimacy of the legislation for the implementation of preparatory behavior,and proposes the limitation and application of the judicial application.The first part is an overview of the implementation of preparatory behavior.This part firstly introduces the phenomenon of practicing legislation on preparatory behavior through the case,and puts forward the idea that the pre-action behavior is justified but needs to be limited.Secondly,it clarifies the connotation of the preparatory behavior of crimes,the conduct of behaviors and the practice of preparatory behaviors.It believes that the practice of preparatory behaviors is essentially a legal drafting,and some criminal preparatory behaviors that are homogenous to the urgency of legal interests will be drafted.In order to carry out the act,an independent offence is stipulated in the sub-rule.Finally,it discusses the legislative model of Chinese preparatory behavior.It believes that the general provisions of the criminal law have unreasonable provisions on the punishment ofpreparatory behavior,and proposes the mode change of the exception punishment.At the same time,the main crimes of the preparatory behavior of the preparatory behavior in the criminal law sub-rules are sorted out,and the type characteristics of the presentation are analyzed.The second part is the theoretical basis and realistic needs of the implementation of preparatory behavior.This part is based on the prevention function of criminal law under the theory of risk society,the early intervention of the major legal benefit criminal law,the dual value behavior non-value theory,the combination of Chinese criminal policy of tempering strictness and strictness,the new characteristics of crime under the network environment,and the grim situation of terrorist crimes.Study the legitimacy and rationality of the implementation of preparatory behavior.On the one hand,from the perspective of criminal law theory,under the current risk society background,the traditional post-penal punishment model is difficult to meet the needs of the society,and the criminal law's control of risk requires pre-emptive prevention.At the same time,such pre-existing prevention is not without restrictions,but should be reflected in the early involvement of the criminal law in the significant legal benefits.In addition,the implementation of preparatory behavior is also in line with the dual behavior of non-value theory to the maintenance of social norms and the protection of legal benefits.The implementation of preparatory behavior focuses on the subjective malignant size of the behavior itself,whether it violates social norms,etc.The preparatory actions for the hazard results provide a basis,but at the same time,the violation of the legal benefits is not ignored,and not all violations of the norms are punished.On the other hand,from the perspective of actual needs,the preparatory behavior is implemented in accordance with the policy of tempering justice and strictness,that is,strictly limiting the scope of preparatory acts with criminal penalties,and practicing behaviors for preparatory acts that infringe upon major legal interests.At the same time,under the Internet era,various information network threats emerge one after another.The network virtual space has become a crime-prone area,and our country's terrorist activities have become increasingly rampant.Under this social reality,it is very important to implement preparatory behavior.The third part is about the problems existing in the judicial application of preparatory behavior.First of all,the implementation of preparatory behaviors to separate the preparatory acts that were not evaluated by the criminal law is a kind of expansion of the scope of punishment for criminal acts.The threshold for the crime of crimes is reduced,leading to the expansion of punishment,which also reflects the maintenance of social order.There is controversy over the value conflicts that protect human rights,such as the “other preparations for terrorist activities” and the “other and other criminal activities” in the crime of illegal use of information networks.Secondly,there is controversy about the behavioral behavior of preparatory crimes,the criteria for judging the criteria,and the imaginary competing crimes of independent preparatory crimes.The author believes that the independent preparatory crimes have the behavioral behavior and the subordinate preparatory crimes do not have.The judgment criteria for the initiation should be substantive and objective.The imaginary competing criminals for the independent preparatory crimes believe that they should be convicted and punished according to the severity of the statutory punishment.Finally,in terms of the form of accomplice,there is controversy about the establishment of others to prepare for sin and the identification of instigation and help behavior.The author believes that in the process of independent preparation,others are prepared to prepare sins and instigators and helpers.The fourth part is the judicial limit of the implementation of preparatory behavior.First,the necessity of criminalization needs to be limited.Under the guidance of the principle of a legally prescribed punishment for a crime,it is necessary to reasonably grasp the conciseness of the criminal law and the connotation of the 13 articles,and fully consider the danger of the preparatory act to determine whether it meets the criteria for conviction.Second,the scope of legal benefits is limited.The understanding of the scope of major legal interests should be limited to the protection of collective legal interests including national security,public safety and social order,and should not include other legal interests such as life and health and property related to personal legal interests.At the same time,the legal benefits infringement of preparatory behaviors should be objective and specific.The over-abstract andspiritualized legal interests such as public security should not be included in the scope of protection.Otherwise,there will be suspects and drawbacks of expanding the criminal circle.Finally,the type of behavior is limited.The act of expressing the stage of the intentional punishment is not punished,and the preparatory act of the independent preparatory crime cannot be punished.The substantive judgment should be made.Only the preparatory act of creating a significant danger can be incorporated into the criminal circle for regulation.