A Doctrinal Review Of The Implementation Of Preparatory Behaviors

With the constant change of criminal legislation,legislation for the implementation of preparatory acts has frequently appeared in the articles.Many crimes that can be evaluated as substantive preparatory crimes are scattered in different chapters of the Criminal Law,and there are obvious differences in violation of legal interests and behavior characteristics.As the activism criminal law concept has become the mainstream value of current criminal legislation,the characteristics of criminal law,such as misdemeanor,abstraction,and prevention,are constantly highlighted.Legislation for the implementation of preparatory acts was originally an exception.Taking into account the needs of social reality and the need for punishment in the sense of criminal policy,criminal legislation may lead to a lack of formal rationality.At present,its legislative rules are still unclear.In order to give full play to the interpretation regulation and legislative criticism of legal interests,the current legislative system of preparatory acts should be traced back to the source,and the legislative rules of substantial preparatory crimes within the legal system should be explored,and then based on The standpoint of formal rationality constructs a legislative restraint mechanism for the implementation of preparatory behavior.Specifically,in the selection of charges,the substantive preparatory crimes are classified into categories,and the purpose,type and basis of the substantive preparatory crimes are reasonably explained,so as to excavate the formal rationality of some charges.In the construction of the constraint mechanism,the principle of proportionality is introduced as a functional supplement to the principle of protection of legal interests,so as to prevent the principle of protection of legal interests from being unable to achieve the function of legislative criticism due to its own difficulty in operation,and the selected crimes are put into this constraint mechanism for feasibility verification,so as to obtain the optimal solution.This is the problem awareness and logic main line of this article.The content described in the first chapter is the status quo of the legislation on the criminalization of preparatory actions,and it points out the nature and characteristics of the preparatory actions,that is,the preparatory actions serve the execution actions,and have the characteristics of goal orientation,quasi-execution behavior,and revision of constituent elements.It plays a role in restricting,guiding and assisting the implementation of behavior.The legislative model of criminal punishment for preparatory acts in our country includes the subordinate preparatory crime model and the substantive preparatory crime model,and the implementation of preparatory behavior legislation actually refers to the substantive preparatory crime model.Through the search,we can find the specific legislative form of the implementation of the preparatory act.The actual crimes of the substantive preparatory crime are widely distributed in each chapter of the sub-rules.From the macro,meso,and micro threedimensional perspectives,we can find the implementation of the preparatory act.There are certain drawbacks in legislation,that is,the legitimacy of preparatory acts is questionable on the macroscopic level,while on the medium level,the principle of universal punishment contradicts substantive preparatory crimes,and on the microscopic level,some substantive preparatory crimes face application dilemmas.On the basis of clarifying the basic concepts and presenting problems in the first chapter,the second chapter deeply analyzes the misunderstanding of the formal rationality of the implementation of the preparatory behavior.There is a lot of controversy about the implementation of preparatory behavior in the theoretical circle,so it is necessary to explain it.Through the interpretation of the controversy,it affirms the practicality of substantive preparatory crimes,shows that the degree of infringement of the legal interests of substantive preparatory crimes is relatively weak,and also points out that some substantive preparatory crimes are insufficient in type.Since the substantive preparatory crimes are distributed in different chapters,it is necessary to classify them into different categories,so as to propose a targeted restraint scheme.The typological analysis rule provides an important analysis path.By studying the true meaning of legislation behind substantive preparatory crimes,it can be found that there is a need for early intervention and protection of major legal interests,the realization of the Completion Function of Substantial Preparatory Crime,the implementation of the concept of social defense from the perspective of risk criminal law and other legislative ideas,among which the early intervention and protection of major legal interests needs to be the core value concept and exist as the legislative basis for substantive preparatory crimes,but behind different crimes,the legislative basis is mixed with other legislative concepts,and The legislative concept of early intervention and protection of major legal interests cannot simply cover all types of substantive preparatory crimes.Therefore,based on the legislative concept,two types of substantive preparatory crimes are obtained,and the crimes are more controversial in the theoretical circle,and cut into the crime that has more controversy in the theoretical circle,and draw different types of formal rationality judgment conclusions.The third chapter describes the basic content and specific application of the legislative restraint mechanism for the implementation of preparatory behavior.As a basic principle,the legal interest theory has the defect of being difficult to operate,so it is difficult to exert the critical function of legislation.By introducing the principle of proportionality as a supplement,as a specific review mechanism for the principle of protection of legal interests,the functional positioning of the principle of proportionality in criminal law can be realized.At the same time,the three sub-contents covered by the principle of proportionality itself can be used as the basic operating mechanism of the legislative restraint mechanism for the implementation of preparatory behaviors.Specifically,this legislative restraint mechanism includes three verification processes: purpose appropriateness test,means necessity test,and restriction appropriateness test.Preparatory action legislation can be tested through this mechanism,so as to realize the possibility of legislative criticism operationalize.In order to fully illustrate the feasibility and effectiveness of this legislative restraint mechanism,the author selects three typical crimes with more controversy in the theoretical circles for verification,and draws the corresponding verification process and verification conclusions.,provide corresponding solutions,and provide optimized solutions for subsequent judicial application.