As can be seen from this provision, the characteristics of crime suspension are as follows:
(1) The perpetrator is subjectively determined to stop the crime. The actor automatically chooses not to continue the crime or pursue the criminal result when he can objectively continue the crime and achieve the criminal result. First of all, the actor is clearly aware that he can continue to commit crimes or achieve criminal results; Secondly, the implementation of suspension behavior is the choice made by the actor automatically; Third, the determination to stop crime must be complete, unconditional and thorough, not partial, conditional or temporary. Subjective reasons for stopping crime include fear of being punished by punishment; Some changed their original criminal intentions because of others' persuasion; Have a plenty of conscience, repent immediately, and change the criminal intention; Others, out of pity for the victims, turned to prevent the crime from happening. The subjective reasons for the suspension of crime do not affect the establishment of the suspension of crime.
(2) The perpetrator objectively stopped committing the crime. First, the act of stopping is the act of stopping the crime and interrupting the ongoing crime. Secondly, suspension can be implemented in the form of action or omission. Third, the termination of the behavior is based on the fact that the criminal result did not happen, but this result is the result of the subjective pursuit of the actor and the inevitable result of the behavior.
(3) Interruption of crime must occur in the process of crime, but not outside the process of crime. The criminal process here includes the criminal preparation process, the criminal implementation process and the criminal result occurrence process. Acts that are not committed in these processes do not belong to the suspension of crime.
(4) The discontinuance of a crime must be the effective cessation of a criminal act or the effective avoidance of harmful consequences.
Classified understanding
(1) Suspension of classes and preparation for suspension of classes. If the perpetrator stops committing a crime before committing a crime in the process of criminal preparation, it belongs to the suspension of preparatory form. When the perpetrator has started to commit a crime, in the process of committing a crime, it is the suspension of the criminal execution form that stops the criminal behavior. For example, A killed B with a murder weapon, and met several security guards on the road. The security team left without knowing a's purpose. Later, A regretted it, gave up the idea of killing and went home, so he didn't start killing people. A's behavior constitutes the suspension of the preparatory stage. The suspension of the implementation stage refers to the automatic suspension of the implementation behavior in the process of committing a crime. For example, in the process of killing B, A felt sorry for B and stopped killing. A's behavior constitutes the suspension of the preparatory stage. For another example, A robbed the road with a murder weapon, met B in the dark and committed violence. When B discovers that it is his acquaintance A, he calls A's name. A stopped at will to apologize to B and said, "I'm sorry, I mistook you for someone else." A's behavior belongs to the crime suspension in the implementation stage.
(2) suspension of execution suspension of execution refers to the behavior that the actor has completed the criminal act, but before the criminal result appears, the actor automatically and effectively avoids the occurrence of the criminal result. Non-execution suspension means that the perpetrator stops the implementation of the criminal act before the execution of the criminal act is completed, which of course also prevents the occurrence of criminal results. For example, when Liu wanted to steal from a warehouse, he "stepped on the spot" in front of Liu Qu warehouse and decided to steal and leave the warehouse. One night, Liu entered the warehouse to steal according to the route observed in advance. When moving things, he knocked over the barrels piled in the warehouse, which made a loud noise. Liu got a fright and hurried away. Liu's behavior belongs to the suspension form of theft. In the process of stealing, Liu knocked over the water in the warehouse and made a loud noise. This is indeed a phenomenon beyond his will. However, it is necessary to investigate the phenomenon that the actor exceeds his will in the process of committing the crime, so as to make the actor stop continuing the crime. If there is a phenomenon beyond his will, but it is not enough to prevent the crime from continuing, and the actor voluntarily gives up the crime based on this unfavorable condition, it should be the suspension of the crime; If there is a phenomenon beyond the will, and it is enough to prevent the criminal from continuing to commit a crime, it should be an attempted crime. In this case, Liu knocked over the bucket and made a loud noise during the theft, which only created unfavorable conditions for him to continue the theft and was not enough to stop the theft from continuing. In this case, Liu should be punished as an unfinished crime. For another example, a man thinks that his wife B has become a burden because he has a third party, and wants to poison B. One day, when a certain person is in the kitchen, he pours the arsenic prepared in advance into the bowl where B eats. After eating a meal containing arsenic, a certain B suffered from unbearable abdominal pain, convulsions and extreme pain. A man couldn't bear it after seeing it, and quickly sent his wife to the hospital for rescue. After being rescued by the hospital, his wife turned the corner. A person's behavior belongs to the cessation of crime. In China's criminal law, there are two kinds of criminal suspension: one is to give up the suspension of criminal behavior automatically, and the other is that the criminal behavior has been completed, but before the criminal result appears, the actor actively takes measures to effectively prevent the suspension of the criminal result. In this case, the poisoning and killing behavior of actor A has been completed. However, before his wife died, she was in unbearable pain after taking poison. Taking the initiative to send her to the hospital for emergency treatment effectively prevented his wife's death, which is in line with the characteristics of the cessation of the crime in our criminal law.
Edit this criminal process
"In the process of committing a crime" as stipulated in Article 24 of the Criminal Law refers to the whole process from crime preparation to crime completion. Including the preparation, initiation and implementation of the crime and the pursuit of the result after the crime is completed. If the crime has been completed, that is, the result pursued by the criminals has occurred, there is no suspension, that is, in theory, there is no suspension after completion. For example, when the salesgirl at the jewelry counter received other customers, Chen Mou reached out and took out a ring worth 2,300 yuan from the counter, held it in her hand, and then continued to pretend to look at it at the counter. A few minutes later, the salesgirl found that a ring was missing, suspecting that it belonged to Chen Mou, and immediately reported it to the security guard. When Chen Mou saw it, he quickly threw the ring back to the counter and ran away. As far as this case is concerned, Chen Mou's theft has been completed, and Chen Mou's act of throwing the ring back to the counter is not suspended. Chen Mou threw the ring back to the counter. As far as theft is concerned, the degree of harm is not whether the actor controls the property, but whether the victim loses control of the property. Therefore, even if the perpetrator does not control the property, as long as the victim loses control of the property, the theft will be accomplished.
Automatic, that is, giving up voluntarily, that is, abandoning, throwing away. The so-called "automatic abandonment" means that the actor stopped criminal activities out of his own will. Explain that the actor stopped the crime voluntarily when he thought he might finish the crime (that is, "he can achieve his goal without need"). If the actor gives up the crime when he thinks that he can't carry it out to the end, it is not a crime suspension, but an attempted crime (that is, "trying to achieve the goal but not"). For example, A stopped a lady from work in the middle of the night to prepare for rape. As soon as the woman turned around, A found that she was a primary school teacher and turned her head and ran away. Some scholars believe that in this case, the actor did not stop the crime out of his own will, because the facts that were beneficial to the actor changed, which led to the cessation of the actor's behavior. Therefore, it is believed that A gave up the crime when he met an acquaintance, not because the actor really repented, but to protect himself. Because taking an acquaintance as the object of infringement will make you face great danger of losing everything or even going to jail, this kind of stop behavior should be regarded as attempted crime; However, some scholars believe that it belongs to the suspension of crime. The reason is that although this situation is unexpected by the criminal, it is not enough to prevent the criminal from committing and completing the crime. Criminals can completely ignore moral norms and carry the crime through to the end. In other words, what is usually called "achieving the goal without wanting it" is the cessation of crime, and "wanting to achieve the goal without wanting it" is an attempted crime. "Being an acquaintance" can't stop the crime from continuing, but it is not necessary but not desirable to stop the crime, so it is a crime suspension. Attempted crime means that the perpetrator has started to commit a crime, but failed to succeed because of reasons other than the criminal's will. Interruption of crime refers to giving up the crime automatically or automatically and effectively preventing the crime from happening in the process of committing the crime. As two unfinished forms in the process of intentional crime, the key to the difference between attempted crime and criminal suspension lies in whether the unfinished crime comes from the actor's own will. If the crime is not committed for reasons other than the will of the actor, that is, the situation of "unwilling to do it, unable to do it", it is an attempted crime; On the other hand, if the crime fails because of the actor's own will, that is, "I don't want to do it if I can't do it", it belongs to the suspension of crime. So this case is a criminal suspension.
"Automatic and effective prevention of criminal results" means that criminals take the initiative to prevent the occurrence of criminal results after the completion of criminal acts and before the occurrence of criminal results. For example, Zhang put poison in Li's cup and killed him. Later, Zhang repented, took the initiative to pour the poison in the cup, or took the initiative to send Li to the hospital for rescue, thus avoiding Li's death. Zhang's behavior is to stop crime. If Li hadn't been rescued by the hospital, he would have died now. This is the completion of the crime, not the suspension of the crime. Because Zhang only stopped the behavior and did not prevent the occurrence of the criminal result, the stop was invalid. Another example is that Yang and Zhang have committed adultery for a long time, and in order to achieve the purpose of combining as husband and wife, they planned to kill Yang's husband Wang. They * * * agreed that Zhang would try to poison, and Yang would wait for an opportunity to poison. Zhang found money to work in a hospital and wanted arsenic. Qian asked Zhang what he was doing. Zhang told the truth and Qian refused. Zhang threatened to expose the privacy of money, but the money was helpless. He gave Zhang a pack of copper sulfate (a drug that can cause vomiting but is not fatal), and Zhang gave it to Yang. One day, Yang drugged Wang's diet. After eating, Wang turned over and vomited, which was very painful. Yang observed for a while and saw that Wang was still in pain and regretted it. He quickly sent Wang to the hospital for rescue, and Wang recovered quickly. Yang's suicide has been completed. Although there was no death result expected by the perpetrators, it was due to the measures taken by the perpetrators-throwing copper sulfate that could not cause death, rather than the measures taken by the perpetrators to send them to hospital for rescue. In other words, although Yang completely gave up his criminal intention subjectively and made positive efforts objectively, such efforts did not effectively avoid the occurrence of expected harmful results, that is, such efforts were subjective and automatic, but objectively they were invalid. Although it meets the automatic conditions of criminal suspension, it does not have the effective characteristics of suspension. Therefore, it can only be punished as attempted crime, not as discontinued crime. Of course, such efforts to prevent harmful consequences should be regarded as discretionary mitigating circumstances when sentencing.
In the Anglo-American legal system, the discontinuation of a crime is usually an attempt, and no special consideration is given to the punishment. The provisions of criminal law in all countries are almost the same, that is, either the punishment is exempted or the punishment is mitigated. For example, Article 43 of the Japanese Criminal Law stipulates: "Those who have started to commit crimes but have not done so may be given a mitigated punishment, but those who stop committing crimes automatically shall be given a mitigated punishment or be exempted from punishment". The first paragraph of Article 24 of the Criminal Law of the Federal Republic of Germany stipulates: "If an actor voluntarily stops the crime or actively prevents the crime from being completed, he shall not be punished as an attempted crime. If the crime cannot be completed without stopping it, as long as the perpetrator actively tries to prevent the crime from being completed, he should be exempted from punishment. " Article 56 of the Italian Criminal Law stipulates that "if the criminal voluntarily stops the act, the punishment prescribed by the act will be imposed only when the completed act itself constitutes other crimes", and "if the result is voluntarily prevented, only the punishment prescribed by the attempted crime will be imposed, and the punishment will be reduced by one-third to one-half".
Judging from the provisions of China's criminal law, the second paragraph of Article 24 stipulates: "If the discontinuer does not cause damage, he shall be exempted from punishment; If damage is caused, the punishment shall be mitigated. " Obviously, the criminal law of our country, like the criminal laws of many countries, is "should" lenient to the discontinued crime, and the lenient content is quite different, and the discontinued crime can at least be mitigated. The punishment for discontinuing a crime in all countries is far lighter than that for attempting a crime. This is a strange phenomenon. The fierce conflict between eastern and western civilizations and the great differences in legal and cultural traditions and criminal law values of various countries have all vanished at this point. Lawmakers in various countries solemnly declare that the offender should be treated leniently. Especially in China's criminal law, the suspension of crime is not only lighter than the punishment for attempted crime and preparation for crime, but also unique and lightest than other statutory lenient circumstances stipulated in the whole criminal law.
* * * The cessation of crime refers to the behavior that some criminals automatically stop committing crimes in the same crime. It should be treated differently according to the situation: (1) In a simple * * crime, all * * criminals are the perpetrators. After one of the criminals decided to stop, he tried to persuade others to give up the crime. If others accept the advice and give up the crime that could have been continued, the whole case is the suspension of crime; However, if one person suspends, and other criminals are unwilling to suspend, but the suspended person takes effective measures to prevent the occurrence of harmful results, the suspended offender is established, and the others are not; If a person stops, although he has stopped others but failed to prevent the occurrence of harmful consequences, he cannot be regarded as a stop crime because of his ineffectiveness, so he can only be given a lighter consideration when sentencing. However, in one case, if the discontinuer takes certain measures to effectively interrupt the connection between his previous behavior and the crime (eliminating the "causal force"), even if a harmful result occurs later, it can still be considered as suspension.
(two) in the complex crime, the perpetrator stops the crime, and the instigator should be recognized as an attempted instigator; Helping the actor has a certain subordinate relationship, the actor stopped committing the crime, and the helper didn't know it, so it should be determined according to the preparation for the crime. Conversely, instigators and abettors should also stop committing crimes. For the instigator, it is necessary to stop the perpetrator from committing a crime and make the perpetrator give up the idea of committing a crime, which constitutes suspension. Helpers should take effective measures to offset the role of their helping behavior in the same crime.
(3) If the discontinuing offender reports to the relevant authorities and the judicial organ has taken effective measures to stop the crime, it shall be deemed as discontinuing. Based on the above problems, it can be seen that it is difficult to understand and identify the suspension of crime. With the deepening of criminal law understanding research and the summary and improvement of judicial practice, it is believed that the vague understanding of the suspension of crime will eventually be eliminated.