我国犯罪预备处罚原则反思

我国刑事责任评价的时间起点是犯罪的预备行为。我国刑法以处罚预备犯为原则,有助于严密刑事法网,将犯罪遏制在萌芽阶段,充分发挥刑法预防功能,但其与现行的犯罪构成理论相矛盾,与刑法谦抑精神相违,缺乏实践操作性。刑法第22 条已经名存实亡,成为一种无意义的重复规定,建议修改刑法时予以删除,同时将一些严重犯罪的预备行为规定为独立罪名。

Introspecting Chinas Punishment Principle for a Crime in Preparation

The criminal duty is appraised from the act in preparation for a crime in China. On one hand, China's punishment principle for a crime in preparation can keep a crime within its germination period and systemize criminal law as well, but on other hand, the principle is not consistent with present theory of constitution of a crime, disobeying criminal restraining principle and lacking practical manipulation. So article No. 22 should be omitted when amending the criminal law, since it has lost its meaning. And some serious acts in preparation are suggested to be as independent accusations.