The first is the theory of attempted crime. This view holds that under the condition of giving up repeated violations, the criminal act has ended without the expected harmful results, which is caused by reasons other than the will of the offender, so it fully conforms to the characteristics of attempted crime. Some people think that in this case, the criminal responsibility of the offender for the attempted act cannot be ruled out, and it can only be considered as a plot to prove that the offender is less harmful to society, but it cannot be considered as the suspension of crime.
Second, the theory of discontinuance of crime. This view holds that, from the time point of view, the violation of abandonment may be repeated, occurring in the process of the crime not ending, rather than the attempted or accomplished form of the crime having stopped; Subjectively, criminals give up voluntarily rather than being forced to stop; Objectively, the expected harmful result did not happen, therefore, it completely conforms to the provisions of China's criminal law on the constitutive characteristics of the discontinued crime and should be punished as the discontinued crime. Moreover, it is helpful to encourage criminals to lay down their weapons, turn over a new leaf and do good deeds by acknowledging that the automatic abandonment of repeated illegal acts is the suspension of crime; Is conducive to the realization of the purpose of China's criminal law.
The third is eclecticism. This view holds that the qualitative problem of giving up possible repeated infringement should be analyzed in detail, some of which belong to attempted crime and some belong to criminal suspension. If someone thinks that giving up repeated infringement always consists of two parts, that is, the first infringement did not have the expected harmful result due to reasons other than will, which constitutes an attempted crime; Later, giving up the repeatable tort constitutes a discontinued crime. However, qualitatively, it should be treated as attempted crime according to the principle of valuing behavior rather than absorbing behavior. Some people think that giving up possible repeated violations may be an attempted crime, such as shooting and killing people without hitting the target and stopping shooting; Some may be a typical crime termination, such as killing people with a knife, the first knife was not hacked to death, and they automatically gave up hacking behavior out of their own will when they could continue hacking; It may also be "attempted crime+crime suspension". For example, A poisoned B, put enough poison in B's rice bowl, gave it to B for the first time, and then dumped it for unexpected reasons. A did the same thing again. While B was trying to eat his rice bowl, A suddenly regretted it and threw it away. The first time constitutes an attempt, and the last time constitutes a suspension. There are also views that the traditional repeated infringement (such as shooting and killing) is a one-time infringement, and the actor's abandonment of the second infringement should be an attempted crime; Repeated assault is an intentional homicide with knives, swords, clubs, sticks and other tools or means. If the perpetrator fails to stab (strike) for the first time and has the conditions to continue the assault, he will automatically give up the repeated assault, thus resulting in no death, and shall be deemed as the suspension of the crime.
The author thinks that the theory of discontinuance of crime is scientific. The main reasons are:
1. The abandonment of possible repeated infringement occurs in the unfinished process of the crime, rather than the attempted form in which the crime has been forcibly stopped. Whether a criminal act is completed or not should refer to all criminal activities required by a complete criminal constitution; Whether or not to implement the standard of suspension depends not only on whether the actor has objectively implemented a criminal act that can lead to a criminal result, but also on whether the actor believes that all the acts necessary to complete the crime have been implemented. Therefore, it should be admitted that under the condition of giving up repeated infringement, the actor has completed the crime, and even if he was originally prepared to kill the victim with one shot, he would never only shoot one shot regardless of whether he was shot or not. The objective reality is that he may continue to shoot if he misses the first shot, and the actor has clearly recognized this situation subjectively. This combination of subjective and objective conditions can prove that the whole criminal activity has obviously not been completed or stopped in an attempted form, but can continue to develop, can develop into a completed crime, can develop into a criminal suspension, and may be forced to stop in an attempted form in further development. In other words, under the condition of giving up the behavior that may be repeatedly violated, the criminal behavior and the whole criminal activity are not over yet, and there are time and space conditions needed to stop the crime.
2. The abandonment of repeated violations is automatic, not forced. For example, A shot B, but missed the first shot. At that time, it was possible to shoot again, but the perpetrators voluntarily gave up shooting out of their own will, so there was no criminal result. At this point, if the first shot is divorced from the whole criminal activity, the first shot's failure is indeed caused by reasons other than the actor's will, which goes against his original intention. The first shot that has been fired can't be stopped, and it's still far from automatic pause. But the key point is that the whole criminal activity is not over, and the reason other than the will of the perpetrator only leads to the failure of the first shot rather than preventing the whole criminal activity from continuing. Under the condition that the whole criminal act is not over, the perpetrator can continue to commit the crime objectively and give up the criminal act that could have been continued, thus showing the automaticity of giving up the crime. This automaticity shows that the perpetrator's criminal will has changed qualitatively, from wanting to complete the crime to not wanting to complete it. Therefore, at this time, the crime has not been completed, and the result of the crime has not occurred. It cannot be easily said that the perpetrator committed an attempted crime and did not "succeed". We should see the change of this vital subjective and objective situation in the process of criminal development and its influence on the stop form of criminal behavior. However, in the case of attempted crime (whether its implementation has ended or not), although the crime has stopped, this stop is forced, which violates the criminal will that the perpetrator has not given up. At this time, the crime has not been completed and the result of the crime has not yet occurred. Of course, the intention of subjectively committing crimes for people has not "succeeded". The automaticity or compulsion of criminal suspension is the essential difference between criminal suspension and attempted crime, and it is also the fundamental reason why the social harm of criminal suspension, especially the personal danger, is significantly different from attempted crime. Giving up the automatic possible repeated infringement is in line with the necessary conditions to stop the crime, but it does not meet the "reasons other than the will of the offender" of the attempted crime, that is, being forced to give up the crime.
3. It is effective rather than invalid for the actor to give up repeated infringement to prevent the occurrence of criminal results. Because the perpetrator gave up the possible repeated infringement automatically and completely, the crime stopped in the unfinished form and stopped developing, so that the criminal result did not happen and the crime did not reach the completed form, which completely and effectively stopped the crime. This is also in line with the last feature and condition of the suspension of crime.
In a word, the author thinks that giving up repeated infringement has all the conditions to stop the crime on the one hand, and does not meet the conditions of attempted crime on the other hand, especially from the perspective of the unity of subjective and objective. It does not conform to the important feature that the attempted crime is not completed due to reasons other than the will of the offender, and belongs to the suspension of the crime under the condition of not completing the crime. Abandoning the view that possible repeated infringement is an attempted crime is not only inconsistent with the relevant provisions of our laws and the basic theory of criminal law, but also unfavorable to judicial practice. For example, shooting and killing people will make the perpetrators feel that although the first shot is missed, giving up automatically is also an attempt and cannot be stopped. Might as well continue to commit crimes. If the victim is not killed in the end, it is still an attempt. According to this thinking, there will be such a situation: both of them missed the first shot, one gave up shooting automatically, and the other was stopped or missed when shooting again. As a result, both of them were convicted of attempted crime, thus subjectively erasing the essential difference between them. Obviously, this determination is not conducive to the implementation of the legislative spirit of China on the suspension of crime and attempted crime, the principle of adapting crime to punishment and the basic criminal policy of combining leniency with severity, and the effective fight against crime and prevention of crime.
It should be pointed out that due to the complexity of the subjective and objective situations involved in giving up the possible repeated infringement, it must be strictly grasped when it is determined as the suspension of crime, and it must be the situation that the actor thinks that the offender can continue to give up the possible repeated infringement automatically. Therefore, if it is due to reasons other than the will of criminals (for example, the victim has escaped or is out of its scope; No bullets or guns are out of order; Be stopped; Someone chased or heard the news, which made the perpetrators afraid or unable to shoot again; The actor's subjective judgment is wrong, and he thinks that he can't continue to commit crimes. ) and forced him to continue to repeatedly commit violations. It should be an attempted crime rather than a criminal suspension.
(The writer is the director of the Criminal Law Research Center of Renmin University of China and the president of the Criminal Law Research Association of china law society. )