中止犯的减免根据

On the Basis of Reduction of Penalty for Abandoned Attempts

关于中止犯的减免根据,政策说和刑罚目的说是我国当前十分有力的学说,但这些学说难以全面解释刑法关于中止犯成立条件和法律效果的规定。由于中止造成量刑上限的降低,因此中止是责任刑的法定量刑情节,中止犯具备反向的不法和反向的责任,两者结合形成负的责任刑,与原本的责任刑在量刑阶段互相抵消。中止行为必须具备与着手实行或预备行为相反的内容,必须消去法益面临的危险,因此中止之前危险必须依然存续,中止行为与结果不发生之间须具备因果关系。自动性必须具备与未遂犯或预备犯的责任相反的内容,行为人实施中止行为必须出于自由意志。

The policy theory and the penalty purpose theory are currently popular theories to explain the basis of reduction of penalty for abandoned attempts in China,however,it is difficult for them to fully explain all provisions on abandoned attempts in criminal law.The true reason why the upper limit of penalty is reduced in abandoned attempts,is that the perpetrator created reverse unlawfulness and reverse guilt,which forms a reverse penalty-based-on-guilt and offsets the penalty generated by the criminal attempt.Therefore,the behavior of abandonment should be opposite to the behavior of attempted offense by eliminating the risk once created.The risk faced by the legal interest shall still exist before abandonment,and there shall be a causal relationship between abandonment and the non-occurrence of the result.Additionally,the automaticity of abandonment should be opposite to the guilt of the attempted offense,which requires abandoning out of free will.