The Nature Of The Impossibility And The Judgment On The Guilt

Impossibility is stipulated in criminal law in many countries, and it is not stipulated in Criminal Law and paid little attention in traditional criminal theory in China. It is just classified as attempted crime and regarded as guilty. Compared to the criminal jurisprudence of other countries, impossibility has been legislated independently and theories about it are very complicated. In fact, impossibility has its unique value and is associated with many criminal fundamental principals such as subjective and objective culpability, constitution of a crime. It should not belong to attempted crime and cannot be regarded guilt in every instance, or safeguard and protection function of criminal law cannot be realized at the same time. Based on that point, through comparative studying, this article puts forward a new point of view that may be useful in both criminal theory and judicial practice in China. The first part: the definition of impossibility. First, the writer is engaged in the presentation of sketchy circumstance about impossibility theory of other countries. By comparing difference of regulation in different countries, the writer finds different conception about criminal culture hind in the theory of impossibility, and offers a clue for the conception of it. And the traditional theory of impossibility in China, that is, impossibility is just classified as attempted crime and regarded as guilt, is unreasonable. Second, the fundamental theory of criminal law in our country, that is the essence of the crime, is discussed. The value of the perniciousness of the crime which is the basic characteristic of the offences is positive, and so the conception of impossibility can be established. The perniciousness of the crime which is the basic characteristic of the offences is consolidated with the illegality of crime, and it is that action has harmed to or might harm to social relations protected by criminal law. The guilty of impossibility depends on the perniciousness of the crimes. Third, the paper, concentrating upon the traditional theory on criminal, holds that there is difference between impossibility and attempted crime. The author gives an explicit definition about impossibility, that is, the impossibility should be divided into punishable impossibility and unpinishable impossibility. The argument for the above viewpoint is that the reason for punishable impossibility is subjective culpability rather than objective culpability which is adopted by the new criminal law, human rights rather than social behalves. The second part: the danger which is on the verge of punishable impossibility of and unpunishable impossibility is discussed. First, the writer is engaged in the presentation of a variety of teaching about confirmation on danger. Second, the necessity and the probability of the confirmation on danger is discussed. The judge should get conclusion on the basis of not only the illegality of crime but also the perniciousness of the crime including the...