简论部分的中止

Brief Comment on the Partial Withdrawal

部分的中止,是指行为人在着手实行阶段,自动放弃了已经具备的加重要素,而仅完成基本构成要件的情形。中止犯既可以针对基本犯而言,也可以针对加重犯而言;部分的中止符合中止犯的成立条件,具备减免处罚的根据;但是,不能随意扩大部分的中止之成立范围。成立部分的中止时,如果中止前的行为没有造成损害,应按基本犯定罪量刑;如果中止前的行为造成了损害,则应比较基本犯的法定刑与加重犯减轻后的法定刑,适用其中较重的法定刑。

Partial Withdrawal refers to the situation that, after launching on committing an aggravating offence, the offender only commits the basic offence by discontinuing committing its aggravating offence voluntarily. Withdrawal could occur either in committing the basic offence, or in committing its aggravating offence. In view of Partial Withdrawal having already met the prerequisites of Withdrawal, which is the foundation of mitigation and exemption, offender should receive mitigating punishment or even be exempted from punishment in the case of Partial Withdrawal. However, Partial Withdrawal should not be identified arbitrarily. In the presence of Partial Withdrawal, if the criminal act before Partial Withdrawal does not cause any damage, the offender should be convicted of the basic offence; on the contrary, if the criminal act before Partial Withdrawal causes damage, after comparing the legally - prescribed punishment of the basic offence and the mitigated punishment, the more aggravating punishment should be imposed.