A Study On The Penalty For The Preparatory Crime

According to22clause of the Criminal Law, the preparatory crime is preparing tools and manufacture condition for crime. The punishment for the preparatory crime could be reduced or remit. There have been some fierce discussions on it in the academic circle. In the judicial practice, there are the cases in which the preparatory crime is condemned. The academic criticism focuses on the severe punishment, which has been proved in the cases in this study. As a consequence, this study tries to comprehensively learn the problem of the punishment for the preparatory crime, with the help of existing research results by literature research method. At the same time, the description study method is also used in this study to collect the extraterritorial review and the history involved. So at the end, after the comparison and demonstration, the result and reconstruction can be reached, which is expected to benefit the theory and practice. In the judicial practice the punishment for the preparatory is even more severe that for the attempted offense, which is obvious unfair. What is the reason of that? And how approach that? Should the preparatory crime be punished? How to deal with the issue in practice? What to do to our criminal law as responding? Those are all the issues this study focuses on. The criticisms focus on the incomplete concept, the negation of the punishment, the large range of the punishment in preparatory crime and the regulation mode according to criminal law. The most significant is whether the preparatory should be punished. In most states, the preparatory should not be punished, which is as a principle. Only in very special situation the preparatory crime is punished. But in China, the preparatory should be punished, which is as a principle. Only in very special situation could the punishment be exempted. The modified constituent elements theory is the basic of the punishment for the preparatory crime which is our faced with the challenges and criticisms. It also is a question whether the preparatory crime should be punished according to the temper criminal policy with mercy. There are also technique problem in determination of the preparatory crime both on subjective and objective aspect. In our criminal law the punishment principle of the preparatory crime is "could be reduced or exempted" which also causes the disputes in academic circle. The regulation mode of the preparatory crime is also under criticisms. Although be challenged many times, the criminal law amendments didn’t take it into consideration. The reason is the law’s continuity and stability, as well as the traditional strict idea and tolerance on crime of our people. But in judicial practice it indeed exists purposely avoid the22nd clause by other clause of criminal law or judicial interpretation, which shows us is a problem we cannot evaded. This study focuses on how to adjust the22nd clause to meet the need of the judicial practice.