Research On The Punishability And Improvement Route Of Preparatory Crime

There has long been controversy about whether preparatory crime is punishable. Most countries do not punish preparatory act, or just endow that of a few felonies with punishability. China’s Criminal Law provides punishability for all preparatory act. However, this provision encounters a lot of insurmountable predicaments, and its deficiency of legitimacy is revealed by further exploration on values and theory. Thereupon, this thesis proposes improvement suggestion. The whole thesis consists of five parts.The first part introduces the historical process, general conception and three legislative modes of preparatory crime abroad. The legislation of preparatory crime, which refers to preparation to commit a crime, ensues with that of attempted crime. Most countries adopt the legislative principle of not penalizing preparatory crime.The second part illustrates the historical process, theories and present situation of preparatory crime in China. The tradition to penalize preparatory crime dates back to feudal criminal law, while modern development helps shape the status quo. This part also gives a brief introduction to various theories about the nature and character of preparatory crime, and presents a proper conception. The current Criminal Law provides the principle of universal punishment for all preparatory crimes in general provisions, but the juridical practice do not implent accordingly.The third part detailedly analyzes the predicaments of punishing all preparatory crimes in China. Firstly, it violates the basic principles of the Criminal Law. Secondly, it’s hard to identify preparatory acts in terms of beginning, ending and behavior patterns. Thirdly, there are plenty of legislative defects, including incompleteness and inaccurateness of definition, confusion of formal and substantive preparatory crime and of felony and misdemeanor, discordance with discontinued crime and the joint crime system, and undue wideness of penalty range. Fourthly, it’s difficult to meet the criminal procedural testification standard, and the overly wide discretion is accompanied by the threat of judicial corruption and human right violation. Consequently, the juridical practice is caught in a dilemma between abusing litigation resources and damaging judicial authority.The fourth part conducts an in-depth inquiry into the penal values and theory of punishability of preparatory crime. Different legislative modes reflect divergence on legal values, penal basic position, and illegality theory. In conclusion, punishability of preparatory crime is short of theoretical support.The fifth part proposes improvement route to refine the regulation of preparatory crime. Transformation should be realized from universal punishment to exceptional punishment, from the rules only in General Part to those in Gneral Part and Special Part, and from criminal regulation to policy regulation.