On the Punishment Basis and Limitation of Substantial Offense with Preparatory Nature
The legislative expansion and judicial extension of substantial offence with preparatory nature directly promote the pre-position of criminal punishment and over-criminalization,and the improper enlargement of the scope of criminal punishment limits the exercise of civil liberties and shakes the foundation of criminal law.Looking back on the original intention of legislation,the establishment of substantial offense with preparatory nature in the specific provisions of the criminal law of China was originally intended to counteract the principle of generally punishing formally preparatory offense stipulated in Article 22 of the"Criminal Law",and to limit the scope of preparatory acts subject to punishment from two dimensions of formal punishability and substantial punishability,thus excluding preparatory acts without criminal punishability from the circle of crimes.Because the substantial offense with preparatory nature has a strong hint of active prevention and early intervention,in order to avoid undesirable development of such offenses in the process of legislative practice and judicial application towards the wrong direction of becoming pocket crimes,instrumentalization and arbitrariness,for the establishment of a substantial offense with preparatory nature,it is necessary to limit the legal interest protected to important ones;it is necessary to require the perpetrator to subjectively have a purpose of implementing the subsequent crime and the preparatory act criminalized as an perpetrating act to objectively enjoy the high-level probability of causing or corresponding to an subsequent act of infringing upon legal interests;it is necessary to adopt the ejusdem generis rule to interpret the catch-all paragraph on the substantial offense with preparatory nature which only include those equivalent to or homogeneous as the numerated ones;the preparation for an independent offense with preparatory nature has not yet imposed considerable abstract danger on the legal interest and is not subject to punishment in principle,thus reasonably delimiting the boundary of punishment for substantial offenses with preparatory nature.
Substantial Offense with Preparatory NatureFormally Preparatory OffenseCriminal PunishabilityPerpetrating Actthe Danger of Legal Interest Infringement
万方数据
维普
