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Research on Preparatory Crime

Author: XuHaiXia
Tutor: LinYaGang
School: Wuhan University
Course: Criminal Law
Keywords: preparatory crime crime constitution theory according to the ontologyof punishment sentencing model of sentencing principles
CLC: D924.11
Type: PhD thesis
Year: 2013
Downloads: 113
Quote: 0
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Abstract


This paper is a comprehensive and systematic study on the criminal law, the relevant issues of preparatory crime’s doctoral dissertation. The full text of a total of One hundred and ten thousand words, is divided into five chapters, including the two chart. Take the method of combining research, comparative study of theory and practice in the research methods, a comprehensive study of the ontology, preparatory crime composition, punishment according to the basic problem of reflection and sentencing.The first chapter is the introduction, mainly introduced in this paper to study the problem of preparatory crime object--legislation and theory of criminal preparation and preparation for crime, and this paper tries to several theories on the stage of preparatory crime research--description, interpretation, reflection, and the method and significance of the study of preparation for a crime is introduced. This paper thinks, main national criminal law means the preparation for crime behavior, probably can be attributed to the preparatory crime and preparatory crime legislation pattern, our country criminal law theory and the Soviet Union on preparatory crime the general legislative model, formed a preparatory crime theory, and the German and Japanese criminal law theory of Germany and Japan around provisions in the specific provisions of criminal law the formation of the preparatory crime, preparatory crime theory, in German and Japanese criminal law in general crime theory, to define the starting point to discuss the purport of unaccomplished crime preparation. While the preparatory crime of preparatory crime should pay attention to theoretical support behind the legislation of different structure on, and should not stay in legislative form representation for. The paper defines the method of preparatory crime theory, follow the general order--"to describe, interpret, reflection" in the study, first tried on preparatory crime facts are described in the specification, which belongs to the existence of double observation theory and normative theory. Secondly, for the interpretation of preparatory crime, in fact is the deconstruction of preparatory crime specification, is about the preparatory crime crime constitution deconstruction. Again, for the study of the preparatory crime penalty, roughly belongs to the theoretical reflection of preparatory crime. In research methods, the main research methods used in this paper is the combination of comparative research and theory and practice. The second chapter is the study of preparatory crime ontology structure of. China’s criminal law in the preparatory crime theory once body structure confusing preparation for a crime and preparatory crime categories or, for the preparatory crime and preparatory crime criminal law nature, system status is not conclusive. This chapter for the preparatory crime, as the body structure of a crime in China’s criminal law penalties were double clear theory of knowledge structure and methodology. On the concepts, characteristics, types and the preparatory crime system status, this paper firstly introduces the related content of China and Russia criminal preparatory crime from the perspective of comparative law, then introduces relevant content in German and Japanese criminal law of preparatory crime. Think, our country criminal law preparatory crime to crime, has started the preparatory behavior for a crime, but due to the reason will not begin to crime criminal behavior, criminal law of Japan on the preparatory crime is ready to act to make specific crime for the purpose of implementing the. China’s criminal law on preparatory crime, in fact the existence of performance for a variety of activities to facilitate the preparatory crime crime; with the correction of the crime in the standardization of evaluation theory; preparatory crime with a specific crime intention factor in subjective assessment theory. In this paper, that type of preparatory crime, the type is different from the preparatory crime behavior. Will China’s criminal law on preparatory crime can be divided into the punishment of preparatory crime and not be punished for crime is of great significance. In the system of status, in German and Japanese criminal law preparatory crime is a crime in the criminal law of our country, and the preparatory crime is a kind of with the correction of the crime of unaccomplished crime. In addition, this article also discusses the scope of preparatory crime problem, namely the preparation stage, that in the interpretation of our criminal law sense, should not be defined as criminal law of Germany and Japan that belongs to the preparatory crime, should also maintain our country criminal theory that is a type of crime the.The third chapter is the research on problem of preparatory crime. Review the basic principles of constitution of a crime is, the general said "the object of crime, objective aspect of crime, subject of crime, subjective aspect of crime" four elements crime constitution theory, to interpret the preparatory crime. Preparatory crime crime constitution has many different characteristics in the accomplished crime, preparatory crime and according to the composition is also different from the attempted offense and accomplished offense, attempted offense and accomplished offense of the crime constitution is based on the criminal law provisions, and the preparatory crime constitution of crime according to the provisions of the preparation for crime is the general principles of criminal law. In this paper, for the composition of preparatory crime, but also in the subjective and objective of unity under the guidance of the principle of. In the preparatory crime crime constitution structure, this paper constructs a "preparatory behavior for a crime two elements--preparatory crime intentionally". Preparatory behavior for a crime is the objective elements of crime of preparatory crime, it belongs to the harm to the society of China’s criminal law on the behavior, but does not belong to a criminal act. The type of preparation for a crime behavior, in the Chinese criminal law in the past for the research on preparatory crime, there are many, generally divided into preparatory behavior for a crime, preparatory acts of crime preparation tool and manufacturing conditions to prepare and his preparatory acts and misdemeanor, felony preliminary preparatory behavior. In addition, the preparatory behavior for a crime and criminal act, criminal conspiracy between the research, points out the preparatory behavior for a crime constitution theory characteristics in the crime. Preparation for a crime is the crime of intentionally preparatory crime subjective factors, including the cognition factor and will factor content, preparation for a crime and the intentional understanding factor should be aware of their implementation is the behavior of services in the nature of criminal purpose of the crime tools to and manufacturing conditions of crime; crime intentional will factor is the hope that this particular preparation for a crime behavior into crime. This paper also distinguishes between preparation for a crime and the crime of intentionally different purpose, logical relationship of preparation for a crime of intentionally and preparation for a crime behavior was studied.The fourth chapter is mainly on the preparatory crime punishment according to research carried out. Because the range of punishment punishment for different indeed produce different effects according to the research, so this part of this paper firstly discussed the range of punishment of preparatory crime types--roughly all penalties and special punishment. Then in the preparatory offense, this paper distinguishes two kinds of basic position, in the criminal law for preparatory crime, and punishment according to seek beyond the criminal law for the preparatory crime punishment according to seek. In addition, the retribution and prevention perspective, for the preparatory offense has guiding significance, based on preparatory crime is lack, basis of preventive and preparatory crime is extremely rich, can say to prepare to make the retribution and prevention of unity for the preparatory crime punishment in accordance with, if pay more attention to the retributive side will choose the exception of punishment of preparatory crime, if more attention to preparatory crime side preventive chose preparatory crime or punishment. In the Chinese criminal law, criminal law for the preparatory crime in search is based on philosophy and ethics according to this theory, however, the preparatory crime punishment is necessary but not sufficient. In the criminal law for preparatory crime punishment according to the crime constitution established according to the criminal policy according to the basic theory, the two theories to immediately think of behavior is based on the basic of penalty. Attention to the behavior of the position in the modern criminal law, this criminal policy according to said, namely unified rationality and validity of criminal policy, to establish according to necessary and sufficient punishment for exceptional punishment of preparatory crime.In the fifth chapter, this paper mainly studied the preparatory crime sentencing on. Thus the conviction and the formation of the corresponding relationship between the preparatory crime. The preparatory crime sentencing theory, this paper mainly discusses the preparatory crime penalty mode and the preparatory crime sentencing principles. Preparatory crime punishment mode, different processes i.e. preparatory crime sentencing activities launched, mainly divided into specific sentencing patterns and from specific to general correction sentencing patterns. On the principle of preparatory crime, shall be reduced in principle, the current Russian Criminal Law in the general provision of the principle will be reduced preparatory crime, and the German and Japanese criminal law in the specific provisions of the specific preparatory crime with respect to its crime will reduce legal punishment. In the subtraction principle, main is the criminal law of our country stipulates the crime in preparation can apply "accomplished crime shall be given a lighter, mitigated punishment or be exempted from punishment".

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CLC: > Political, legal > Legal > Chinese law > Criminal law > General Provisions > Crime
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