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2001年3月,德国联邦法院裁决的这个上诉案再次彰显了司法对于处罚犯罪准备的谨慎。在德国,犯罪准备一般是不可罚的,刑法分则有例外规定,刑法总则在第30条中也规定了可以处罚的几种情况,其中之一就是重罪约定。重罪约定可罚性的根据其实和犯罪准备可罚性的根据是一致的,本文将通过分析得出犯罪准备可罚性并非是基于刑事政策的原因,而是立足于行为的不法性。而不法性并非是由刑罚目的决定的,而是来自于法益受损或者受威胁的事实。法益是否受威胁可以从印象理论、行为无价值等不同的视角去观察,最后得出结论,只有作为危险的结果才能对犯罪准备的不法性作出最有力的说明。本文还结合联邦法院的裁决总结了构成重罪约定的条件,最后对中德两国关于犯罪准备做了简略的对比。
Again, in March 2001, the appeal decided by the German Federal Court of Justice demonstrated yet again the cautiousness of the judiciary in its criminal preparation. In Germany, criminal preparation is generally not punishable, the exception of the provisions of the Criminal Code has an exception, the general provisions of the Criminal Code in Article 30 also provides for several circumstances can be punished, one of which is the felony agreement. The basis of the felony agreed punitiveness is actually consistent with the basis of the criminal preparation penalty. In this paper, we will find that the penalty of criminal preparation is not based on the criminal policy, but based on the wrongfulness of the act. The wrongfulness is not determined by the purpose of the penalty, but from the fact that the law is damaged or threatened. Whether the legal interests are threatened can be observed from different perspectives such as impression theory and valueless behavior. Finally, we can conclude that only the most dangerous explanation can give the most powerful explanation of the wrongfulness of criminal preparation. This article also summarizes the conditions that constitute a felony agreement in combination with the ruling of the Federal Court, and concludes with a brief comparison of the preparations for crimes between China and Germany.