犯罪预备若干理论研究及反思.docx

和谐社会,贯彻宽严相济的刑事司法政策,犯罪预备实属法律规定的法定从轻或减轻情节的犯罪情形,因而研究犯罪预备更加具有现实意义。本文就犯罪预备的相关理论问题进行阐述,并根据现代刑法的流行趋势,对犯
罪预备的立法规定进行反思。
关键词:犯罪预备 处罚 立法概览、 反思
Abstract
Crime is preparation is only dangerous act in criminal law. Crime in preparation can also be called as the course of a crime in preparation, so as to distinguish from practice course and the course after practice in process mission of crime. Preparation for a crime is one of the patterns of pleteness of a crime and its basic characters are almost no controversy in theory. However, in theory there are still various view on the difference between preparation for a crime and expression of criminal intent and offense of conspiracy. Compared the foundation and concept of criminal preparation nowadays with that of ancient time, we found we can realize it more reasonably. To punish the preparation of crime is because the preparation action is the dangerous action, which can lead to real crime of there is no external cause to obstruct the action. Therefore ,it is necessary to the legislator to use the power of punishment before hand to prevent the criminal preparation and to sustain the social order, since the criminal preparation action has the character of inertia, which is the real danger to the legal benefit of criminal law. Nevertheless, it is still rather a predicted action to use the punishment power before the crime, we should make restriction to the action to prevent the excessive use of punishment power. On one hand, china’s punishment principle for a crime in preparation can keep a crime with in is germination period and systemize criminal law as well, but on other hand, the principle is not consistent with present theory of constration of a crime, disobeying criminal restraining principle and lacking practical manipulation. With the social progress and the building of our country’s great plan for strengthening the law, the criminal probationary legislation with indistinguishable and principle orientated nature seems obs