Abstract:There are such three views about the discontinued phase of abandoning crime based on disgust in criminal law theory and judicial practice as crime suspension, attempted crime and specific analysis. The foundation of criminal policy of the mitigation and exemption of punishment for discontinued offenders is based on the reward for the discontinued behavior in terms of crime prevention, which plays a guiding and restrictive role in the judgment of the automaticity of suspension. Abandoning crime based on disgust cannot show that the scenario is back on the track of legitimacy, and the crime prevention is still indispensable. It does not make sense to give the discontinued offenders the reward of punishment mitigation. The determination of the automaticity of suspension should be based on the subjective theory, but the judgment of “ability” and “desire” must be restricted by utilitarian values. If a crime is discontinued out of disgust because the desire to commit a crime or the expected profit from the crime cannot be fulfilled through the criminal offence, the stopping behavior should be regarded as a result of “the unachievable desire” rather than “the unperformed ability”, which does not accord with the characteristics of automaticity of suspension.
谢治东. 论基于嫌恶之情放弃罪行的停止形态[J]. 浙江工商大学学报, 2023, 37(1): 57-68.
XIE Zhidong. On the Discontinued Phase of Abandoning Crime Based on Disgust. Journal of Zhejing Gongshang University, 2023, 37(1): 57-68.