Rethinking And Improvement On Punishment Regulations Of Discontinued Criminals

The discontinuation of crime is a kind of unfinished criminal patterns. The criminal law of many countries and regions provide a lenient punishment policies and stipulations to the discontinued offenders especially compared with the attempted offenders. Because discontinued offenders voluntarily eliminate the criminal intent or throughly and actively take effective measures to prevent the occurrence of criminal result. For discontinued criminals, the the legislation pattern in Chinese is that the punishment for discontinued criminals should be mitigated or exempted. In order to make up the defect of far too general of 1979 criminal law, the 1997 criminal law further regulates a standard, whether the harm are caused, to distinguish between punishment mitigation and punishment exemption, which limits the judges’ discretion, and also avoids the confusion of judicial application. It seems that the modified punishment regulation of the discontinued criminals is more accurate and specific. However, there are many problems. This paper analyzed the problems of current punishment rule of the discontinued criminals and put forward some suggestions in order to improve the punishment regulation of the discontinued criminals. With a total of 36 thousand words, there are four parts in this article.The first part is the overview of the punishment of discontinued criminals. This part mainly introduces the foreign punishment principles of the discontinued criminals and Chinese criminal law punishment principles and the change in specific punishment regulations. Meanwhile, it also analysized the theory foundation,which explains the reasons of criminal penaltyreductions or even exemptions for the discontinuance of crime.The second part is the analyses of the punishment regulations of the discontinued criminals in Chinese criminal law. This part mainly puts forward the problems in the current punishment regulations of discontinued criminals. Namely opinions on the definition of "damage" are divergent. Moreover, it is controversial that whether the damages occurred shall be regared as the only standard to mitigate or exempt from punishment and the reference standard of punishment mitigation is ambiguous, which leads to the judicial arbitrariness and undermines the unity and authority of justice.The third part is to rethink the punishment regulations about the discontinued criminals of our country. This part mainly makes a concrete analysis of problems existing in the current punishment regulations. First, the definition of “damages” and the standard of punishment mitigation is unclear, which is contrary to the principle of legality. Second, the only standard to mitigate or exempt from punishment is whether the damages occurred or not, which is a kind of punishment criteria purely focus on objective factor and contrasts to the principle the balance between crime and punishment and the principal of unification of the subjective elements and the objective elements. Third, the regulation which stipulates that those who caused no damage shall be exempted from punishment deviates from the purpose of the penalty. Fourth, the discretion of the judge are deprived in terms ofthe punishments of discontinued criminals, which not only shows the extreme distrust to the judge, but also leads tocontradictions.The fourth part is the suggestions to perfect the legislation and judicature of the punishment regulations of discontinued criminals. In this part, I advice to still adopt the provisions of the 1979 criminal law,which is that "for the discontinued criminals, it should be given apunishment mitigation or punishment exemption”. At the same time, promulgate the corresponding judicial interpretation to specialize the application issues.It should include the following three aspects: First, apunishment mitigation or apunishment exemption should depend on subjective and objective factors such as the nature of crime, the process of crime, the motivation of crime discontinuance, whether damages occoured and so on. Second, the scope of the "damages" should be clarified and a general standard of damages’ judgment should be given to make a clear concept of "damages".Third, the judicial interpretation should make clear the reference standards of punishment mitigation.