The Research About Several Problem Of Attempted Offense

The regulations about attempted offense in our criminal law, not only have led to various theories in the academic circle of criminology, but also have made the departments of judicature feel puzzled about it. To resolve this problem, we must put some fundamental theories of attempted offense in order and perfect them.This essay is allotted six parts: In partâ… ,under the premises of criticizing the available achievement, basing on the fundamental connotation of the compromise theory, we bring up the reason of punishment on attempted offense from two aspects. Observing from the surface, the fatalness of committing a crime that can not complete the crime is the main basis of punishment in criminal law. Considering from the essence, the reason why we consider attempted offense as a crime is mainly the demand to guard the society and prevent crimes.In partâ…¡,the amendatory constitution of crimes has not resolve the problem of a basis that how to convict a crime. In order to clarify this issue, we should make clear definition for the relationships among constitution of crimes, establishing of crimes, completing of crimes and attempt of crimes. Constituting crimes is the lowest standard of conviction. Only when the crime is established, we can determine issues of completing of crimes, attempt of crimes and others. The differences on constitution of crimes between completing of crimes and attempt of crimes are reflected in the objective elements of crimes. The objective elements of crimes should be considered as the whole process from preparing crimes to starting to commit crimes, and completing crimes. The constitution of crimes is divided into several gradations. When the action conforms to the first element of constitution of crimes, it will be convicted of preparation for crimes. If the stage of preparing crimes does not exist, the action may be convicted of attempt of crimes or discontinuation of crimes. When the action conforms to the last element of constitution of crimes, it can be convicted of completing of crimes. The uncompleted crime patterns such as completing of crimes and attempt of crimes should apply united and varied constitution of crimes. In partâ…¢, the basic styles for completing of crimes are consequential offense and behavioral offense. Potential damage offense which is a special kind of consequential offense is naturally completing of crimes, and the state of attempt of crimes does not appear in the potential damage offense. Behavioral offense can also result in damage effect, and the unusual aspect is that the completion of objective action means violating legal interests, in other words, the completion of objective action and the occurrence of damage effect are in the same progress. Correspondingly there are two norms of distinguishing between completing of crimes and attempt of crimes: consequential offense should be distinguished with the norm of whether occurring legal damage results or not; moreover, behavioral offense distinguished with which whether completing legal objective actions.In partâ…£, there are both attempt of crimes pattern in behavioral offense and offense aggravated consequence. Indirect intent crimes have the pattern of attempted offense, which is approved and rested on three fields of psychology, jurisprudence and practice of judicature. The basic principle of combining the quality and quantity determine should be insisted, in recognizing the existence scope of attempted offense, however may be measured with punishment in order to be easily manipulated in practice. It is stipulated that more than 3 years set term of imprisonment is felony, otherwise is misdemeanor. Attempt of crimes may happen in felony, but not in misdemeanor commonly.In partâ…¤, Chinese criminal law factually stipulated two punishment methods: one is general policy conditions in general provisions of criminal law, the other is special policy conditions in special provisions of criminal law. The former has not independence but depends on corresponding completing of crimes, which is referred to determine corresponding criminal penalty extent. The later focuses on independent criminal penalty of certain attempted offense such as potential damage offense. At present, penalty principles stipulated in general provisions of criminal law are difficult to handle special conditions such as impossible attempted offense etc.In partâ…¥, the measure of lawmaking reconstruction include adding regulations "attempted offense is adapted to crimes that induce the lowest criminal penalty which is three years to ten years set term of imprisonment, except for special regulations", "avoiding penalty if undamaged caused" etc. Refer to misdemeanor attempted offense which need penalty: two measures can be adapted in criminal penalty arrangement: stipulating independence criminal penalty refers to potential damage offense or only stipulating to give a lesser penalty. While changing and defining criminal law, corresponding laws and regulations are needed to form a complete set. At the same time, administration of justice is needed to follow.