On The Cognizance Standard Of Commence Of Perpetrating Act Of Crime

The article is divided into six chapters.The first chapter discusses the deficiency of the theory of objective form.The logical starting point of this paper is to criticize the objective theory of traditional forms.This is because the traditional theory of objective form is the first one to distinguish between attempted crime and preparatory crime.According to the theory,only when the actor has carried out the behavior that meets the constitutive requirements can he recognize that he has started.Proponents of the traditional form objective theory put forward that one of the basic functions of the constitutive requirements is to guarantee the legality of the crime and punishment.It is against the doctrine of criminal law that the act can be established before the implementation of the constitutive requirements.Therefore,it is necessary to clarify the relationship between these theories and the doctrine of legality.The traditional theory of objective form is not necessarily opposite to the doctrine of legality,and other theories are not necessarily against the doctrine of legality.On the formal level,China's criminal law does not define the act of execution as the act of constitutive elements;on the substantive level,the principle of legality of a crime is put forward before the theory of constitutive elements,and the theory of constitutive elements is becoming more and more substantive.In view of this,as long as the act before the constitutive requirements is closely related to the act itself,it is in line with the basic concept of legality.The traditional theory of objective form does not neglect the identification of subjective aspect,which is also the most explicit theory of starting.The main reason why we don't agree with this theory is that it is not conducive to the protection of legal interests.However,the theory of formal objectivity is essentially the theory of substantial objectivity,which is not enough.The second chapter discusses the defects of subjectivism.Subjective theory includes pure subjective theory and modified subjective theory.According to the pure subjective theory,it is necessary to determine whether the action has been started or not according to the subjective will of the actor,because of the lack of empirical possibility.Although the revised subjective theory also advocates that the judgment should be based on the subjective criminal intention of the perpetrator,the determination of the criminal intention should rely on the objective behavior.This theory is difficult to coordinate theory with practice,and it is not reasonable to think that the criminal law adopts the "doctrine of reduction" to punish the attempted offender.Subjectivism tries to endow it with legitimacy through teleological behavior theory,but teleological behavior theory itself is "behavior theory",which also clearly points out that behavior and will determine the meaning of behavior together.Therefore,no matter how to emphasize the role of subjective will,we should adhere to the objective illegality theory in the illegality theory.In addition,the original intention of teleological behavior theory is to prevent the abuse of punishment,while the subjective theory is to expand the scope of criminal punishment,which runs counter to each other in concept.Now,there is no support for this theory.The third chapter points out the problems of the compromise theory.The eclecticism discussed in this chapter is not the eclecticism in the traditional criminal law theory of our country.It is based on the actor's subjective imagination and whether the danger of infringement of legal interest is urgent or not.There are quite a number of supporters in both common law and continental law.In view of the great differences between the basic criminal law theories of the two legal systems,this chapter discusses them separately.The compromise theory in German and Japanese criminal law theory mainly includes subjective objective theory,individual objective theory,intermediate behavior theory,out of control theory and domain theory.The compromise theory in Anglo American criminal law mainly includes the theory of initial act,the theory of final act and the theory of substantive step.The theory of proximity standard.Although some of these theories provide a reference standard for the identification of attempted offense,it is not worth advocating that all the compromise theories regard subjective criminal intent as the basis of punishment or illegality for attempted offense.The fourth chapter aims to study the four groups of relationships that affect the identification of risk.First,the relationship between the theory of starting and the theory of non-crime is the first.The academic circles generally believe that the two are in the relationship of the table,and are essentially the same problem.But there are also some points out that there is a qualitative difference between the "danger" discussed in the theory of impossibility and the risk discussed in the theory of starting.In some cases,the theory of non-criminal is judged prior to the theory of starting,and they are different fields.The latter view should be approved.What can not be discussed in the theory of crime is the quality of danger,while the practice of the theory of starting studies the problem of dangerous quantity.Only when the self denial is not allowed to be committed can we judge whether it has been started.Secondly,the relationship between the preparatory crime and the attempted crime should be based on the preparatory crime and the implementation of the issue should be studied from another angle.The expansion of the scope of punishment for preparatory crime means that the scope of punishment for attempted crime is correspondingly reduced,and vice versa.The form of preparatory crime should be abolished and the preparatory act which is critical to the beginning should be treated as attempted crime.Thirdly,the relationship between the beginning of the act of implementation,the beginning of the implementation and the establishment of attempted crime should be clarified.There are three main theories at present.Among them,the biggest problem is that the "practice behavior = the beginning of implementation" is not consistent with the provisions of criminal law."The practice behavior is not the beginning of implementation = the theory of the establishment of attempted crime" is too narrow to interpret the function of the act of implementation.The concept of "practice behavior" should be classified into different areas.It is recognized that the difference between the practice behavior in the theory of implementation and the practice of causality theory in criminal law theory is that it can maintain the traditional equation of "the beginning of the practice = the beginning of implementation = the theory of the establishment of attempted crime".Finally,the relationship between the implementation of the crime plan and the implementation of the crime plan should be clearly defined.Although it is difficult to find out the criminal plan of the actor,when there is solid objective evidence to prove that the behavior personnel has a criminal plan,it can accurately judge whether there is an urgent reflection of the risk of infringement and avoid improper advance of the time when the specific plan of the crime is determined.The fifth chapter is the core part of this paper,which is divided into behavior risk theory and consequence risk theory.Although the theory of behavioral danger thinks that only those who cause realistic danger to legal interests can be set up,but they take the behavior as the starting point.It is not correct to not only logically contradict each other,but also lead to the too early starting point.Finally,it is suggested that the theory of consequence danger should be regarded as the standard of recognition.In terms of the determination of "danger degree",it should be considered that the attempted crime does not correspond to the abstract dangerous crime or the specific dangerous crime.Instead,the risk of attempted crime should be identified in a typological way.The danger of the attempted obstacle belongs to the specific dangerous crime,the probability of the dangerous elements which cannot be attempted,and the attempted of the specific dangerous crime belongs to the appropriate crime.It is necessary to analyze the specific crime based on the theory of result danger.The starting point of insurance fraud is to claim against the insurance company.The starting point of burglary is the time point of intrusion into the house,and the attempted attempt of the crime of arson is based on the time point of sprinkling gasoline.Chapter six discusses the implementation of special crime types.The start of these types of crime is controversial in both theoretical and practical circles.It should be based on the theory of consequence danger,and think that the theory of "used behavior" should be taken as the starting standard of indirect principal offender.In terms of the freedom of cause behavior,we should understand the principle of responsibility as the principle of "the existence of both behavior and responsibility ability",and it is unnecessary to define the "act" as the practice behavior.On this basis,whether it is intentional act of free cause act,or fault,omission type of free cause behavior,we should take the "result behavior theory" as the starting point of implementation.In the situation where the result occurs in advance,we can not think that the intention of attempted intention is different from the intention of accomplishment.If the two behaviors do not have close relationship in time and space,we can not affirm the implementation of the start.