Analysis On The Base Of Punishability Of Impossibility

The base on which the impossibility should be punished is punishability. The punishability of impossibility has been paid more attention to and debated fiercely since the concept of impossibility came into being. However, at present in our county, so many problems about the impossibility can not be solved due to the lack of related legislation. Meanwhile, there are more and more theoretical arguments about the impossibility. The debate on the object impossibility in Chinese theory of criminal law originated from theunderstanding of concept of object impossibility. Object impossibility is also called uncommitted object impossibility. It refers to the condition that the subject commits impossible crime on the misperception. The concept was formed in the criminal theory of 19 century, and then was studied as a serious topic of criminal theory by civil law countries. It is also studied by common law countries. It is studied by Chinese criminal law scholars from the era of ROC. After the foundation of P.R.C., there has been heated debate on whether to adopt the concept of object impossibility. Many scholars argue that it shouldn't be adopted in Chinese criminal theory, because there are no regulations on object impossibility in Chinese, and in judicial practice, the criminal responsibility of object impossibility can be solved following the example of the principal of facts misperception. It doesn't necessarily combine object impossibility and non-penetration. If the concept of object impossible in the criminal theory of the capitalist class is directly adopted, it merely adds a complex procedure, and makes the problem confused. However, according to the present conditions, the concept is used in Chinese criminal theory, and it is studied as a kind of criminal pattern of non-penetration, i.e. it confirms the punishability of object impossibility.In Chinese criminal theory, object impossibility is also called uncommitted object impossibility. It refers to the condition that the subject commits impossible crime on the misperception. It can be further divided into target impossibility and instrument impossibility. Target impossibility refers to the conditions that the target of a crime is beyond the effective range of action for the offender's misconceptions, or for some reasons the crime had to be uncompleted but can't be completed. For instances, one wrongly recognizes a man as a woman, and commit rape, or wrongly think there is someone in the room and shoot. Instrument impossibility refers to the condition that the offender on the misperception uses the instrument which cannot achieve the criminal intent or complete the crime according to the objective nature of the instrument. For instances, one wrongly recognizes the white sugar as toxicant and take s it to kill someone. On the basis of the unity of subjective and objective, object impossibility conforms to the modified constitution of a crime regulated in the General Principles of Criminal Law. It has the social risk, thus it should be punished. Furthermore, the social risk of object impossibility is less than that of object possibility. So the punishment of object impossibility should be milder than that of object possibility. The writer agree with the viewpoint that crime of object impossibility should be punished But why is the object impossibility which doesn't cause factual damages devalued by criminal law? There are argues about it in Chinese criminal theory, but the general theory think that it should be punished on the basis that it conforms to the modified constitution of a crime regulated in the General Principles of Criminal Law. The writer analyzes the object impossibility in the perspective of the social risk of act and binary valueless.The thesis consists of five parts, over 41,000 Chinese characters except the preface and epilogue. I only try to make a full analyze aiming at the origin and evolution of the impossibility as well as the current acknowledge of it abroad, so that I can probe into the native problems of Impossibility from all sides. Furthermore, my points of view are put forward, expected to be of a little help to the legislation or theory improvement on the term of impossibility.Part one, the concept and characters of the Impossibility, in which a few distinct specialities of the impossibility are induced in length, meanwhile, different features are concluded according to the different specialities. First, malefaction is already commenced. Second, the malefaction is out of the state of crime completion. Third, the malefaction is of danger.Part two, the theory development of impossibility, analyze the historical development of the impossibility in foreign developed countries by the way of historical study of it, on which base, the present dissatisfactory situation is concluded in our country.Part three, the punishability of impossibility, which is drawn a conclusion about two foreign outstanding theories (subjectivity and objectivity), by comparing their punishability, and then the theoretical defects in our criminal law.Part four, I have analyzed the native general theory that the"danger to society"of malefaction is the base of punishability of impossibility. Comparing the relation between the"binary Erfolgsunwert theory"and the"subjiective and objective consistent theory of crime constitution", I conclude that the danger of malefaction is the base of impossibility.Part five, in the current criminal law theory, the impossibility is punishable although, the range is too wide, which goes against the principle"guard rights of everyone"of criminal law, therefore, I put forward my sincerely suggestions expecting to be of a little help to the legislation about impossibility in the future.