Related papers: Similarities and differences between discontinuation of crime and attempted crime.
Discontinuation and attempted crime are two concepts, both of which belong to the form type of intentional crime and are easy to be confused. It seems to be a foregone conclusion in the theoretical circle of criminal law that how to distinguish crime termination from attempted crime. However, in judicial practice, the theoretical disputes about the discontinuation and attempted crime are contrary to the basic spirit of the rule of law. As an unfinished form of crime, crime suspension and attempted crime do not have the objective elements of crime stipulated in criminal law. Therefore, it is of great significance in judicial practice how to correctly distinguish between attempted crime and criminal suspension, and how to correctly characterize and sentence this behavior.
First, the cessation of crime-to achieve the goal without thinking.
Interruption of crime refers to the situation of automatically giving up crime or automatically and effectively preventing the occurrence of criminal results in the process of crime.
Interruption of crime has four characteristics: timeliness, automaticity, objectivity and effectiveness;
(1) Timeliness of suspension; The suspension of crime must occur in the process of crime, that is, the suspension of crime can occur in both the preparation stage of crime and the implementation stage of crime; The crime is not over yet, neither attempted nor accomplished. If the crime is automatically restored to its original state after completion, it is not established that the crime is suspended, and the crime cannot be stopped after the attempted crime.
(2) the automaticity of suspension; That is to say, the actor objectively realizes that there is the possibility of continuing the crime or the possibility of accomplishment, but voluntarily gives up the original criminal intention.
(3) Objectivity of suspension;
(4) Effect of suspension. The suspension of a crime must be the result of a completed crime that has not yet occurred, otherwise it will not be established.
The establishment of criminal suspension does not require that there is no criminal result, but that there is no criminal result as a sign of accomplishment.
Article 24 of China's criminal law stipulates: "If the discontinuer has not caused damage, he shall be exempted from punishment; If damage is caused, the punishment shall be mitigated. "
Second, the attempted crime-achieved the goal but failed to achieve it.
Attempted crime refers to the situation that a crime has been committed and failed due to reasons other than the will of the offender.
Characteristics of attempted crime:
(1) has started to commit crimes, and criminal acts have entered the implementation stage.
(2) the crime failed. Usually there is no criminal result, but not all criminal results are successful.
(3) The failure of the crime is due to reasons other than the will of the offender. It mainly includes three situations: restraining criminal will, restraining criminal behavior and restraining criminal result.
Article 23 of China's criminal law stipulates that "attempted crime may be given a lighter or mitigated punishment according to the completed crime".
Three. Similarities and differences between discontinuation of crime and attempted crime
(1) Similarity between discontinuation of crime and attempted crime
1, and the temporal and spatial ranges overlap.
Both the suspension of crime and the attempted crime can exist in the space-time range after the start of the act and before the completion of the crime. According to the provisions of Article 23 of China's Criminal Law on attempted crime, attempted crime can only occur after the crime has been committed. Although according to the provisions of China's criminal law, the suspension of crime can occur after the crime has been committed (implementation stage and post-implementation stage) or before the crime has been committed (preparatory stage), in practice, the suspension of crime mainly occurs after the crime has been committed. Then, the suspension of crime and attempted crime in the implementation stage and the post-implementation stage are completely coincident in time and space.
2. The crime has not been completed.
Objectively speaking, whether the crime was stopped or attempted, it was stopped in the process of intentional crime, and the crime was not carried through to the end. For consequential offenders, they have not caused legal criminal results. That is to say, both the attempted crime and the discontinuance of the crime have started to commit the crime under the subjective intention (direct intention), but for some reason, they finally stopped before the crime was completed, thus failing to realize the criminal purpose and will pursued when they started to commit the crime.
3, must bear the corresponding criminal responsibility.
Both discontinuation of crime and attempted crime have certain social harm, and they must bear corresponding criminal responsibility. Although the cessation of crime and attempted crime have not reached the state of accomplishment or caused legal criminal results, the perpetrator had clear criminal intentions subjectively and objectively before his criminal behavior stopped, which threatened or initially damaged the social relations protected by criminal law, thus giving him subjective and objective basis for assuming criminal responsibility.
(2) Similarities and differences between discontinuation of crime and attempted crime.
1, it happened at different times. Attempted crime occurs after the crime has been committed, and there is no attempted crime in the preparatory stage of the crime. Discontinuation of crime requires that the crime must be abandoned in the process of committing a crime, that is, after preparing for the crime or starting the crime, it can constitute discontinuance of crime.
2. Failing to complete the crime for different reasons. In the attempted crime, the failure of the crime is due to reasons other than the actor's will, and the actual result of the crime violates the actor's original intention, that is, he wants to do it but can't do it. In the suspension of crime, the actor voluntarily gives up the crime that can be continued and completed at that time, that is, he can not do it. This is the fundamental difference between the cessation of crime and the attempted crime.
3. The behavior results are different. The result of attempted crime is that the crime has not been carried out, which means that the actor has not completed all the elements of a crime, but it does not mean that damage will not occur. Discontinuation of crime requires that the perpetrator must give up the crime completely. The automatic and effective prevention of criminal consequences also requires that the perpetrator must effectively prevent the occurrence of legal criminal consequences of the criminal acts he has committed.
4. Different criminal responsibilities. According to the provisions of China's criminal law, attempted crime can be given a lighter or mitigated punishment than accomplished crime; If the discontinuer has not caused damage, he shall be exempted from punishment, and if he has caused damage, he shall be given a mitigated punishment. The punishment of discontinued crime is lighter than that of attempted crime, and its purpose is to encourage criminals not to commit crimes again, thus effectively protecting the interests of the country and the people from crimes.
Note: The following article quotes Guo Hongxian, the people's court of Poyang County, Jiangxi Province, about the similarities and differences between stopping crime and attempted crime.