Legislative Research On The Implementation Of Preparatory Acts

For fight against crime and protect human rights,China's criminal law stipulates some specific acts which are originally preparatory to crime separately in terms of charges and specific elements.This legislative mode is the implementation of legislation of preparatory act,which has aroused heated discussion among domestic scholars.The current criminal law of our country implements the general punishment to the preparatory offender,which has some problems such as legitimacy and operability,such as violating the legal principle of crime,being suspected of subjective imputation,the scarcity of judicial resources,unable to punish all the preparatory offenders according to the legislative provisions,etc,From general punishment to exceptional punishment,from general rule to specific rule,from punishment form to punishment essence.On the one hand,under the background of risk society,the traditional criminal law can not effectively protect the legal interest based on the result,so the criminal law should implement the preventive turn.However,this preventive turn is not unlimited,but should be reflected in the protection of major legal interests in advance.This preventive turn is also the need of the development of state functions;On the other hand,with the rapid development of the Internet age,the scope,object and result of network crimes are extensive,so it is necessary to take criminal legislation to fight early and small.At the same time,the crime of terrorist activities is becoming more and more rampant.Once the crime of terrorist activities is successful,it will seriously infringe on public security,national and social stability.It is necessary for the criminal law to pre protect the legal interests infringed by such crimes,which is also the basis of legislation for the implementation of preparatory acts.The implementation of preparatory act will lead to the conflict between the value of freedom and the value of social order,that is,the violation of the principle of modesty of criminal law.In fact,the value of freedom and the value of order are not antagonistic,and the reasonable limitation of legislation can balance the value of freedom and order;Regarding the violation of the principle of humility in the criminal law,the principle of humility in the criminal law is to rationalize the scope of punishment as far as possible rather than restrict the scope of punishment in the criminal law.In addition,after the adoption of the new legislative model,the dispute about the independent preparatory crime,the independent preparatory crime should have the nature of implementation in the specific provisions of penalty and with complete elements,and the "other preparations" appearing in the articles of the independent preparatory crime law should be reasonably interpreted to clarify the scope of punishment;As for the preparatory act of independent preparatory crime,it should be punished only when there are explicit provisions in the law;Finally,in terms of the form of accomplice,it is affirmed that the crime of abetting and helping others to carry out independent preparation is punishable,but it should be analyzed in strict accordance with the principle of accomplice subordination.Although the implementation of preparatory act is the trend of future criminal law legislation,it is not to implement all the existing criminal preparatory acts that can be listed.Therefore,it is necessary to clarify the limit of the implementation of preparatory behavior.First of all,we should set reasonable standards and restrictions for the legislative model of the implementation of preparatory act;Secondly,the necessity of incriminating behavior should be limited,the principle of legality should be implemented,and the "proviso" should be used to reasonably incriminate.Thirdly,the position of substantive preparatory crime should be strictly observed,and the boundary between "significant legal interest" and "urgency" should be clarified.Finally,the expression of criminal intent and the preparation of crime should be distinguished,so as to avoid punishment for the expression of criminal intent.