Research On The Standardization Of Substantial Preparatory Offenses In My Country

Through legislation,the preparatory act which originally belongs to other crimes is stipulated in the special rules,so that it has independent constituent elements,independent charges and statutory punishment,which is the essential preparatory crime.Through the establishment of substantive preparatory offense in the specific provisions,it can make up for the deficiency of the general provisions on the general punishment of preparatory offense,but it also faces problems and challenges in the application process.This paper is divided into four parts:The first part of this paper aims to define the research object of this paper.This paper analyzes the concept and characteristics of the substantive preparatory offense and studies the relevant provisions of the substantive preparatory offense in China's criminal law,so as to clarify the connotation of the substantive preparatory offense in China's criminal law and lay a foundation for the development of the follow-up research.The second part is the analysis of the punishability of the substantive preparatory offense.The mode of universal punishment of prepared offense has always been controversial.Although it has formal requirements,it is necessary to discuss its substantial rationality so as to avoid falling into circular argumentation.On the one hand,compared with the mode of punishing the probative offense stipulated in the general rules,the mode of substantial probative offense has the form requirements of punishing the probative offense.On the other hand,in the era of big data,the practical need to prevent terrorist crimes and cyber crimes is more urgent.The model of substantive preparatory crime has the theoretical support of positive general prevention theory,dual theory of behavior without value and criminal policy basis,and has the substantial rationality of punishing the preparatory crime.The third part is to face many challenges to the actual preparatory crime.First of all,the substantive preparatory offense has the characteristics of extraterritoriality,and it faces the problem of ambiguity in the scope of establishment in our country.It will lead to the generalization of the scope of establishment by emphasizing the empirical judgment and ignoring the normative relationship between the substantive preparatory offense and the legal interests of the purpose crime protection.Secondly,there is a problem of insufficient classification in the crime of the essential preparatory crime,and it is faced with the question of regress to universal punishment.In addition,different from outside the legislative mode,essence of ready made originally prepare for other criminal behavior,in the case of our country has been the general regulation and rules in the essence of the ready made specific provisions of whether there is still a preparation,attempted,suspension form,whether there is a preparation for others,after its implement behavioral,how to regulate all kinds of crime pattern recognition,all need to answer one by one.Otherwise,taking the material preparatory offence as a shortcut to the punishment of the preparatory act and bringing the preparatory offence into the category of the material preparatory offence indiscriminately will not only dilute the connotation of the material preparatory offence,but also impact the criminal law system of our country,resulting in the adverse consequences of excessive expansion of the penalty power.The fourth part is the response to the risk of the substantive preparatory crime.First of all,the scope of substantive preparatory crime can be regulated by positive control and negative control.On the one hand,its establishment should be limited to the scope of major legal interest,and the scope of major legal interest should be defined.In addition,the danger of major legal interest is relatively urgent,so the scope of establishment should be actively limited.On the other hand,we should adhere to the principle of modesty in criminal law.Secondly,to limit the type of behavior from the subjective and objective aspects,constitutes the material preparatory offense requires the actor not only to have the purpose of causing the direct infringement of legal interests,but also to make it clear that the behavior in the stage of expressing his intention is not punishable.Finally,in our country,the material preparatory offense stipulated in the specific provisions has completed the practical transformation,and there can be the forms of preparation,attempt and suspension,but when the determination of the criminal cessation forms,the preparatory behavior of the material preparatory offense must be judged substantively,and can not be punished all the time.