规范学视野中预备行为可罚性的反思与重构

原则上处罚预备行为反映了刑罚权在发动时间上的过早提前,仅通过总则的规定处罚缺乏实行行为的预备犯违反了罪刑法定原则,导致了事实上的主观归罪。为克服这些矛盾,应当把危险性大的与实行行为没有本质界限的预备行为作为未遂犯对待,在分则中对威胁重大法益的与实行行为脱离的纯粹预备行为单独规定构成要件和法定刑。

Reconsideration of Penalization for a Preparation from the Angle of the Criminal Norms Science

The punishment for a preparation, if prescribed by existing principles contained in the General Provisions, indicates that a sanction is assumed too hurriedly. Thus, to impose a punishment for a preparation that lacks performance must result in a subjective incrimination that is against the principle of “ No crime or penalty without a law authorizing it.” To avoid these mistakes, we should take the position that some preparative acts that are dangerous and in conformity with performance ought to be counted as uncompleted offences. As for other pure preparations that threaten people's principal legal interests and can be separated from the actual performance of an offense, their constitution and penalties should be respectively provided for in the Specific Provisions.