On Attempted Offence Under The Modern Criminal Law Thought

The criminal attempt, as an unaccomplished form of crime, has long been a hot topic in the academic circle. This article, basing on the compromised theory of modern criminal law and the dual paradigm of study, has systematically elaborated opinions on the basic theory of attempted offence, the general and special principles of obstacle attempted offence and impossibility.This article emphasizes comparative method in study. When talking about the basic theory of attempted offence and obstacle attempted offence, it stresses the comparative opinions between the whole civil law system and common law system countries. When talking about impossibility, it stresses the comparative opinions between mainland and Taiwan and gives mainland some beneficial revelations through the analyses of Taiwan’s legislation.This article also attaches importance to the path of combining theory and practice, and especially in the chapter of special problems of obstacle attempted offence, it analyses cases in Taiwan or mainland in detail while discussing the basic theories so that the conclusion seems to be rational.This article is composed by six parts:The introduction part simply introduces the present study on criminal attempt, and fingers out the importance of reconsider it under the trend of modern criminal law thought.Chapter I is the general introduction of the trend of modern criminal law thought, which is a cover for the following criminal attempt study.Chapter II is the general introduction of attempted offence, in which it talks about the history, the concept, the basement and the scope of punishment. Chapter III is the general theory of obstacle attempted offence, in which it mainly talks about the concept, the elements of constitution and punishment etc. Chapter IV is the special form of obstacle attempted offence——criminal attempt in joint crime, in which it mainly talks about the attempt in joint principal offender, instigator and accessory offender.Chapter V is impossibility, in which it mainly talks about the concept, punishability, elements of constitution and danger judgment of impossibility. The details are as follows:Chapter I The general introduction of the trend of modern criminal law thoughtSection I General review on the history of criminal law. This article argues that the criminal law has experienced a long process from an obscurantic one in ancient time to a dark one in middle ages to a rational one in modern times and finally to a compromised one in present.Section II The ontology of the compromised criminal law. This article argues that the compromised criminal law can be concluded as the relative principle of nullum crimen sine lege, the dual theory of conduct without value and the theory of personality responsibility in the field of criminal part and the dualism in the field of penal part.Section III The axiology of the compromised criminal law. This article argues that the value of compromised criminal law lies in the idea of“mean”. The compromised paradigm is advocated because the unitary paradigm has some unavoidable defects.Section IV Summary. This part sums up opinions in Chapter I.Chapter II The general introduction of attempted offenseSection I The origin and development of attempted offense. The punishment of attempted offense might date back to Roman law,but modern theory and system of attempted offense was established during Bourgeoisie fighting against the Feudalism. With the development of Capitalism, the discussion between objectivism and subjectivism appeared. Section II The conception and sorts of attempted offense. Criminal attempts are of two varieties: attempted offense in a broad sense which includes discontinuous attempted offense and obstacle attempted offense; attempted offense in a narrow sense which is just obstacle attempted offense. This article advocates the latter one, but due to the special relation between impossibility and obstacle attempted offense, impossibility is also brought into discussion.Section III The justification of punishment of attempted offense. In civil law system, the justification of punishment interpreted by objectivism lies in the objective danger made by the act to legal interests, while the one interpreted by subjectivism insists it is the mens rea of the actor. However, both are so imperfect that compromised theory arises. Compromised theory can be classified by two kinds according to object part or subject part is superior. The first category is that objectivism is primary and subjectivism is subsidiary, e.g. impression theory. The second category is that subjectivism is primary and objectivism is subsidiary, and this theory insists that the basement of punishment for attempted offense is first the real danger of crime accomplishment and then the mens rea of the actor. This article adopts the latter one. In common law system, the justification of punishment of attempted offense lies in the justification of penalty. Theories of criminal law of Taiwan are consistent with the ones in civil law system in this aspect; however, viewpoints in Chinese criminal law vary a lot. The general view argues that the foundation of punishing attempted offense lies in the offender’s act fulfilling with the modified constitution and the theory of social harm. This paper, basing on formative judgment (elements of constitution) and substantial judgment (no-value), initially puts forward that the justification of punishment is that the offender’s act which fulfills with the modified constitution has danger to violate legal interests.Section IV The scope of punishing attempted offense. Attempted offense shall not exist in negligent offense, indirectly intentional crime and omission offense. In the case of result-aggravated offense, if basic crime has been accomplished but aggravated result has not occurred, no attempted offense shall exist; if basic crime has not been accomplished but aggravated result has occurred, it shall be analyzed concretely by considering whether aggravated crime and basic crime belong to the same accusation. In the case of dangerous offense, concrete dangerous offense has no attempted offense while abstract dangerous offense has it. The patterns of provision for regulating attempted crime have the generalized one, the specialized one and the mixed one. In this aspect, Chinese criminal law’s regulation is unreasonable.Chapter III General theories of obstacle attemptedSection I General views on obstacle attempted offense. As to the character of obstacle attempted offense, this paper does not agree with the opinion that considers the attempted offense as a kind of (concrete or abstract) dangerous offense. As to the elements of its constitution, this paper adopts the two-element model which includes the commencement of implement and the unaccomplished offense.Section II Commencement of implement. It is the key point to distinguish attempted offense and preparatory offense whether the act commences. Among theories of commencement of implement, objectivism claims for the objective theory which includes formal one and substantial one, and the latter can also be classified by theory of act and theory of result; Subjectivism claims for the subjective theory in which pure subjective theory and modified subjective theory are hotly discussed. Compromised theory, basing on eclecticism, is composed of subjective one and individual one. This paper advocates the compromised theory in which objective theory is primary while subjective theory is accessorial.As to the shapes of concrete crimes, the issue of commencement of implement of omission offense is chiefly discussed. This paper holds that omission offense could only commence when an omission which violates the duty to act has caused a concrete danger. As to the judgment for commencement of indirect principle offender, this paper holds exceptional theory, that is, the criteria of the man who utilizes is principle, and the one of the man who is utilized is exceptional. As to the judgment for commencement of actia libera in causa, this paper holds the causal behavior theory. As to the judgment for commencement of partition offense, this paper holds the exceptional theory.Section III Unaccomplished offense. There are different views on the standard of accomplished offense, for example, the theory of result, the theory of act, the theory of purpose and the theory of elements of constitution. Basing on the compromised stand, this paper advocates the comprehensive one which is surely the theory of elements of constitution.Section IV The legal assertion of attempted offense of several common crimes. This part analyzes the criteria of commencement and accomplishment for some common crimes such as crimes of homicide, fire, rape, robbery and theft etc.Section V The punishment of obstacle attempted offense. There are different models on punishing obstacle attempted offense, such as equality one, compulsive reduction one and selective reduction one, and the last one should be advocated. Besides, the extent of attempt affects sentencing too.Chapter IV The special form of obstacle attempt——criminal attempt in joint crimeSection I Attempt of joint principal offender. As to the commencement of joint principal offender, all-solution theory should be adopted; attempt offense and subjective crime of joint principal offender can not coexist, even in the case of personally committing crime.Section II Attempt of instigator. As to the character of instigator, this paper holds restrictive hypotaxis theory. As to attempt of instigator, this paper holds that only when the principal offender starts to commit a crime can the instigator be punished. This conclusion has been verified by the amendment of Taiwan criminal law and it will surely bring great influences on the theory and practice of Chinese criminal law.Section III Attempt of accessory offender. As to the elements of accessory offender, this paper holds restrictive hypotaxis theory, that is, only when the principal offender has done some illegal acts fulfilling the crime constitution can the accessory offender be possible to be punished. As to whether attempt of accessory offender exists, this paper holds positive opinion, and considers that attempt of accessory offender forms only when the principal offender has started to commit a crime but not accomplished. As to the scope of obstacle attempt of accessory offender, only when principal offender does not accomplish or abandon the crime can accessory offender be obstacle attempted crime.Chapter V ImpossibilitySection I Conspectus of impossibility. There is no united concept of impossibility, but it differs from superstition offence and wrong-thinking offence. Generally speaking, impossibility can be classified by means impossibility, object impossibility and subject impossibility, however subject impossibility will not talked about in this article.Section II Comparative research on punishability of impossibility. In the legislations and theories of civil law countries, Germany and France consider impossibility be punishable while Italy and Japan prescribe that impossibility is unpunishable. In common law system, impossibility is generally considered to be punishable. In China’s mainland, impossibility is one type of criminal attempt (impossible attempted crime) which is punishable. In Taiwan, impossibility is changed from being punished to being impeccable.Section III The elements of constitution of impossibility. Punishable impossibility has the same elements of constitution with obstacle attempted offence, while the core of elements of constitution of unpunishable impossibility lie in that the act has no danger. Therefore, the judgment of danger has become the core of the whole impossibility theory.Section IV The judgment of danger of impossibility. According to the classification of subject and object theory, the main theories on the judgment of danger of impossibility can be classified as pure subjective theory, abstract danger theory, objective danger theory, modified objective danger theory and concrete danger theory etc. These theories differ a lot on the material, time and criteria of danger judgment, and have substantial difference on the understanding of the construction of criminal law form, the basic stand, the essential and basement of illegality. Based on a compromised stand, this article agrees with the concrete danger theory and rejects abstract danger theory and modified objective danger theory.