The Study Of The Basic Issues In Attempted Crime

Attempted crime modality is a holdup state during the process of crime committed by direct intentional criminals. Once crime is attempted, criminal behavior will neither be resumed nor be developed, but rather, will stop at the stage of holdup. The cognizance of attempted criminal modality concerns our opinions on the starting point and terminal point of criminal implementation behavior, on the criteria of completed crime, on the pattern of specific provisions of criminal law, on the constitution of crime. Therefore, importance should be attached to the study of attempted criminal modality, whether theoretically or practically.The dissertation starts with the theory of criminal cessation pattern, expounding the major features of attempted crime, and focusing on the following topics: first, the existence range of attempted crime, which is the premise of the discussion of attempted crime; second, the penalty basis and penalty boundary of attempted crime, which concerns the basic attitude towards attempted crime, hence the starting point of the research; third, the criteria, premise and identification of initiating a crime; fourth, the criteria and identification of attempted crimes; fifth, the criteria and identification of reasons independent of the criminal’s will.Chapter one is the introduction of attempted crime, which falls into four sections. The dissertation holds that the existence range of attempted crime must be identified prior to the research of attempted crime pattern, for the former is the premise of the latter, and thus the study of attempted crime must done within the range. Besides, several basic concepts concerning attempted crime must be distinguished, such as, crime implementation behavior, attempted act, crime completion, crime constitution and the specific provisions of criminal law. In our criminal law, crime behavior includes crime preparation behavior and crime implementation behavior. Attempted crime is committed after the initiation of crime implementation behavior, which is classified as a typical crime act in the specific provisions of criminal law. Thus, attempted crime should also be classified as a typical crime implementation behavior (the consequential offense is exception). Attempted act is an integrated concept, including punished and unpunished attempted act. Whether punished or not, attempted act always exists. Completed crime and attempted crime unnecessarily co-exist. No completed crime, no attempted crime. However, if completed crime exists, attempted crime does not necessarily do so.In some cases, the completion of crime is identical to the establishment of crime, and thus the attempted crime is ruled out. The constitution of crime is the criteria to identify the behavior establishment of crime, and hence is primary. Nevertheless, the constitutive elements in a completed crime are secondary, and thus an attempted crime is also secondary. The conformation to the constitutive elements of a crime can not be considered identical to that to the constitutive elements of a completed crime. The mode of the specific provisions of criminal law is that of completed crimes, but not that of established crimes, and thus conforms to the situation in which the stipulation of a crime is a completed crime. An attempted crime can not be regarded as a completed one just because of lack of certain essential elements. The dissertation analyzes two types of attempted crimes, holding that uncompleted attempts but not completed attempts exist in the behavioral offence, and that both uncompleted and completed attempts exist in the results make. Generally speaking, the completion of criminal behavior does greater harm than uncompleted criminal behavior. Not-guilty includes two kinds: one inoffensive not-guilty, including the superstitious offence, which can not be called attempted not-guilty; another is not-guilty of uncompleted offense, called attempted not-guilty, including two types—instrumental and target not-guilty. Compared with attempted not-guilty, attempted guilty does greater harm to society, for it has the possibility to reach completion, and thus is punished more severely.The second chapter—“the basis of punishment for attempted crime and the range of punishment”—is divided into two sections. According to theory on punishment for attempted crime in continental law, the dissertation argues against subjective attempted crime theory as well as objective attempted crime theory, but justifies eclectic attempted crime theory. It proposes that the punishment for attempted crime should be based on the penal responsibility theory on the unification of subjectivity and objectivity. It puts forward some constructed ideas, i.e. the subjective aspect of the doer should be considered prior to his or her objective aspect within the penal responsibility theory on the unification of subjectivity and objectivity. According to this sequence, suppose there is no danger in the behavior, no punishment is exerted; even in the event of danger existing in it, the behavior may not reach the punitive conditions, for the subjective aspect—direct intention of the doer—should be considered. The inspection of whether the behavior brings danger to legal interest should follow the sequence: first, to inspect the form, i.e. to inspect whether the offensive behavior conforms to the criminal characteristics stipulated in the specific provisions of criminal law or not. Second, to inspect the essence of the offensive behavior, i.e. to inspect whether the danger to legal law is realistic and urgent or not. On the basis of the stipulation on punishment arrange for attempted crime conducted throughout the world, as well as the practice and its effect conducted by our country’s legislation of criminal law and justice, the dissertation holds that the degree of harm to the legal interest should be taken as the general criteria to confine the punishment range of attempted crime. To put it specifically, the attempted crimes to be punished should includes such cases as attempted form in the crimes of endangering national security, violence endangering lives, severe crimes endangering health. Moreover, the attempted crime of larceny in property crimes should be punished because of its harmful severity. The rest attempted form in property crimes can be ignored (with the exception of robbery). Legal punishment criteria should be considered to deal with the attempted form in other intentional crimes and the attempted form of fixed-term imprisonment below 3 years should be ruled out from the punishment.