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预备犯的处罚依据在中外理论上存在着一些争议。我国之所以处罚预备犯是基于理论依据、法律依据、事实依据和政策依据四个方面的综合考量。预备犯具有独特的修正性犯罪构成,虽然发展程度低但也具有可罚性,应结合刑法总则和分则的法律规定和司法实践具体事实去认定,处罚预备犯要遵循我国的刑事政策背景,符合罪刑法定原则和注重人权保障,避免刑罚扩大化。
The basis for the punishment of preparatory offense There are some controversies in theory both at home and abroad. The reason why China punishes preparatory prisoners is based on the theoretical basis, legal basis, factual basis and policy basis. The preparatory offender has a unique constitutional correctional offense. Although it has a low level of development but also has the potential to be punishable, it should be determined according to the general rules of the criminal law and the legal provisions of the sub-rules and the specific facts of the judicial practice. To punish the preparatory offender should follow the criminal policy background of our country, In line with the statutory principle of crime and punishment and pay attention to human rights protection, to avoid the penalty to enlarge.