The Research On The Early Intervention Of Criminal Law In China

The early intervention of criminal law is generally refers to in order to prevent the occurrence of serious social harm,by putting the intervention to the social life of the criminal law to be ahead of time,thus ensuring the security and stability of society and of the citizen's life safety.In the early stage of criminal law intervention,there are some appellations,such as pre-protection of legal interest and early punishment.Early intervention of criminal law and the coming of the risk society and has close relation with the social transformation of our country,in the midst of the ninth amendment of criminal code is involved in many of the early intervention of the criminal law provisions.Risk of early intervention into criminal law for the criminal law theory of label is triggered extensive discussions,the theoretical circle of criminal law early intervention will prepare behavior practice,helping behavior crime,at the same time increasing the number of the abstract dangerous crimes,this crime from the source to the behavior of a certain legitimacy,can effectively prevent the occurrence of serious crime,a certain extent,reflects the development trend for the future legislation in China.However,at the same time,it is necessary to further improve this theory in the process of practical application.Therefore,it is necessary to delve into the theory of early intervention of criminal law.Based on the theory of criminal law in our country,at the same time to absorb borrowed from other countries and regions for early intervention of criminal law legislation present situation,the concept of criminal law,criminal legislation and criminal justice,limit,makes the criminal law in early this theory could help in the service of our country's construction of rule of law.In addition to the introduction and conclusion,this paper is divided into five parts.The first part is the introduction of the early stage of criminal law.First of all,it analyzes the background of the early intervention of criminal law.Risk society theory is that in today's world has entered into the risk society,and in order to create a lot of problems in the risk society shall,in the field of criminal law need early intervention to the social life of criminal law to effectively deal with risks,prevent the happening of the serious crime.Look at our country,because our country is in social transition period,various contradictions increasingly prominent,many kinds of crime,the appearance of many new type lead to difficult to deal with of our country traditional criminal law,in order to cope with the serious situation,our country's criminal legislation in a timely manner to increase,adjust the relevant rules to solve many social problems have appeared during the period of social transformation.Second,to define the concept of criminal law in the early,the early intervention of criminal law refers to,in order to deal with the risk society,to prevent the occurrence of serious social harm,early intervention to the social life of the criminal law in specific areas,by will have the serious social harm behavior in advance into the phase of criminal law and the criminal penalties of in advance to reduce the unfavorable consequences caused by harmful behavior,and guide the people abide by the laws of a phenomenon.Finally,the article clarifies the relevant concepts of the early intervention of criminal law.First,it is not advisable to refer to the appellation of "legal interests".Because the concept of legal interests is very fuzzy,this law is to protect the interests of what is not clear,and ordinary citizens to hear the word law benefits are hard to understand the meaning.Second,it is not advisable to refer to "punishment".Because the penalty is only a stage in the legal application process of criminal law,it does not reflect why the criminal law should intervene early in the life of the people,but also fails to reflect the prevention function of criminal law.Therefore,the author finally adopted criminal law intervention earlier this term,because compared with the first two terms,the criminal law of early intervention can better help citizens understand the phenomenon of early intervention of the criminal law,at the same time,covering both the function of prevention,also contains the attributes of punishment.In the second part,the controversial view of the early intervention of criminal law and its analysis.There are three views on the early intervention of criminal law.A positive said most scholars think,traditional model of the after punishment of criminal law is difficult to deal with today's society and changeable risk,and early intervention of criminal law can before danger into reality,to early may damage the interests of the protection.However,this view does not see the adverse effects of the early intervention of the criminal law.Therefore,this view is not desirable.Although scholars argue that the early intervention of social life in the criminal law is not desirable from different perspectives,most of them believe that the scope of punishment of criminal law should be expanded.Although in the criminal law the negative consequences of early intervention in argument has certain rationality,but negative views did not see the positive impact brought by the early intervention of criminal law,therefore,this kind of view nor desirable.While the scholars in a compromise that should be cautious to use criminal law early intervention,although criminal law early intervention is beneficial to safeguard citizens' social life of stability,but also cannot ignore its possible consequences of violations of human rights,criminal law should take the balance of freedom and order,so need to be perfect.The author agrees with the eclectic view that it is necessary to perfect the criminal law in the early stage to prevent crime and maintain social stability.The third part is the embodiment of criminal law involvement in the early stage.First of all,the traditional criminal law for the preparation of act generally will be given a lighter or mitigated punishment or be exempted from punishment,but based on the social status quo,many preparatory crime behavior showed great harmful to the society,for example,the terrorism crime once risen from perpetrating act to implement stage,the result will be very serious.Therefore,the legislator will carry out the preparatory act to carry out the processing,the actor carries on the related crime the preparatory act independent provisions in the criminal code section of the provisions.Secondly,helping behavior is a kind of legislator directly stipulating some kind of help behavior as the main crime,setting the rule of independent statutory punishment.If the crime of aiding terrorist activities and the crime of helping information network crime can be effectively avoided,it is very difficult to punish the criminal if he does not seize the principal offender.Finally,because its are not required to have the reality of the results,as long as the implementation of relevant behavior,this kind of behavior with the abstract danger at the same time,will be able to carry on the punishment of criminal law,the legislation in the criminal law general preventive function,at the same time,also can relieve the burden of proof in the litigation process,to facilitate the cognizance of the judge.The fourth part is the extraterritorial legislation and its reference for the early intervention of criminal law.First of all,this paper analyzes the relevant legislation of the criminal law intervention in the continental law system in Germany and Japan,the United States and Britain in the Anglo-American law system and Taiwan in China.Second,by review sums up the legislation of these countries and regions in the criminal law early intervention in the legislation of characteristics,in which aspects put forward our country should absorb the legislative experiences in other country.First,the regulations covering the criminal law cover a wide range of areas,covering many areas of life,such as road safety,environmental protection and personal information protection.Second,the legal punishment is relatively light,and the variety of penalty.Third,the legislation of the criminal law in the early stage of the criminal law is very good implementation of the principle of criminal punishment.Through summarizing the characteristics of the legislation of other countries and regions presents a,it is concluded that early intervention of criminal law of our country legislation should also insist on the principle of legality and so on,at the same time,should also be moderately expand the crime ring,configuration is relatively light slow legal sentence.The fifth part introduces the limitation of the early intervention of criminal law.First of all,in the concept of criminal law,we should adhere to the principle of legality and restraining criminal law.Because,the basic theory of criminal law is the foundation of criminal law,just because the emergence of the criminal law in early and deny the importance of the principle,is the right thing should be performed in the early intervention of criminal law legislation at the same time,adhere to the principle of the above,in order to achieve both can crack down on crime effectively,and can effectively guarantee the purpose of civil liberties.Secondly,in the criminal legislation level,should be moderately expand the crime ring to achieve the purpose of strict criminal law,but only has serious social harmfulness of behavior can be into the scope of the adjustment of the criminal law.Furthermore,criminal legislation should be forward-looking.Face the risk of unpredictable and types of diversification,if the set behind the social reality of criminal law,will lead to the emergence of new crime cannot strike by criminal law,therefore,should be targeted for prospective legislation,to achieve the goal of social security.Finally,in the criminal justice level,in the face of criminal judicial localization problems,should continue to deepen the reform of the judicial system,strengthen the consciousness of the independence of the judicature,to ensure that the judicial organ to a fair and just trial.In addition,should establish and improve the criminal judicial organs and administrative law enforcement organs of communication channels,improve the administrative evidence to the transformation mechanism of criminal evidence,clear responsibility when the criminal punishment and administrative penalty,only in this way,can let the criminal justice and administrative law enforcement can effectively link up,better play to the effect of criminal law.