Research On The Criminalization Of Preparatory Behavior

The newly added "crime of preparing to commit terrorist activities" and "crime of illegally utilizing information networks" in the Criminal Law Amendment(9)have independently included specific preparatory actions into the criminal circle,which is the legislative embodiment of the legalization of criminal preparatory actions,that is,the legislation elevates the original preparatory actions to the implementation of new charges.In judicial practice,it is reflected as an independent punishment for preparatory acts and a clear tendency towards incrimination,which means that the punishment provisions on criminal preparation in the General Provisions of the Criminal Law should be applied instead of independent charges in the Specific Provisions.How to avoid the excessive expansion of the criminalization of preparatory acts and clarify the reasonable boundaries of the criminalization of preparatory acts requires further exploration using the theory of criminal law doctrine.Due to the significant legal interests infringed upon by preparatory actions that endanger national security,public safety,and personal safety crimes,the judgment of the social harmfulness of the actions has become the cornerstone of the rational conversion of preparatory actions into principal offenders.Moreover,the serious social harm of the behavior may cause irreparable consequences to national security,public safety,and the personal safety of citizens.Therefore,it is necessary to impose early penalties on the preparatory actions for some major crimes,so that they can obtain independent charges and criminal constitutive requirements in the Criminal Law,and then achieve forward-looking protection of major legal interests through the early intervention of criminal law regulations.At the same time,this also reflects the gradual transformation of China’s legislative model from post punishment to pre prevention.Therefore,it is necessary to conduct a theoretical analysis of the criminalization of preparatory actions.Firstly,the preparation behavior should be distinguished from the implementation behavior,with the "beginning" of the behavior as the judgment standard,and the boundary between the two should be clearly defined.Secondly,the principle of protecting legal interests should be adhered to in the criminalization of preparatory acts,and the legal interests infringed upon by preparatory acts should be limited and interpreted to achieve the legitimacy of the criminalization of preparatory acts.Finally,for the conviction and sentencing of preparatory actions,it should first be determined whether there is an independent charge in the Criminal Law.If there is already an independent charge in the Criminal Law,the preparatory action belongs to the principal offense of the preparatory action,and the perpetrator is punished as the principal offender;If not,the punishment principle for preparatory acts in Article 22 of the General Provisions of the Criminal Law shall apply.The theoretical analysis is aimed at better serving judicial practice.In the judicial practice of the criminalization of preparatory acts,the criminalization of preparatory acts has a profound impact on the identification of accomplished and accomplice forms of action crimes.The act offender should also have a criminal preparation stage,and the corresponding preparatory actions in the accomplice should also constitute instigators and accomplices.Through specific analysis of the corresponding actions,the feasibility of criminalizing preparatory actions in practice has been fully demonstrated.