Research On The Fundamental Problems Of Incapable Crime

Incapable Crime as one pattern of the incomplete crime ,in China's current penal theory, it remains to be further improved and the criminal legislation is also blank. Incapable crime has the value of independent and in depth study, because of the demand of the reality and criminal lame theory's improving. This paper is divided into five sections.In the first part of this pager,summarize the theory of incapable crime.Through the inspection of civil law countries (Take Germany and Japan for example) and Common law countries (Take Britain and American for example), realize that: First, in different countries, the incapable crime is in different intrinsic and extrinsic meanings. Some referring to no fines incapable crime, some referring to uncommitted and no fines incapable crime, others, referring to incapable of fact, incapable of law and incapable of itself. Consequently, different incapable crimes formation in different countries. Second, the theory of incapable crime in different countries are all the question of specific identified, behind the complex theory of different countries, thou are different basic doctrines. The choice of criteria for judging related to the valuation of the entire country.Our country has the history of the incapable crime, but there is no regulation in our current criminal law. There are three theories about incapable crime in our country:Firstly, incapable crime is the incomplete incapable crime; Secondly, incapable crime is the no fines incapable crime; Thirdly, incapable crime includes the incomplete incapable crime and the no fines incapable crime. All of the theories have their, drawbacks, so, it is necessary to re-define the incapable crime.In the second part of this paper,re-define the incapable crime.Through the analysis to the words and incomplete crime, we can name incapable crime as a crime of incomplete. We describe the concept into broad and narrow, the incapable crime in broad means, the perpetrator intends to commit crimes, but, because of nature of the means against the targets or erroneous understanding of the characteristics, the action can not completed. The incapable crime in narrow means the incomplete incapable crime. The incapable crime in broad has, the characteristics as: Firstly,centaurs the factor of incapable include the incapable of means and incapable of object. Secondly,there is wrong understanding including awareness or the wrong target and wrong method. Thirdly,it is the incomplete crime. The incapable crime in broad has related to crime in preparation and crime in suspension. When it comes to the short of fact, because it do not suitable for the introduction of the four essential elements to the crime, so we need not follow it.In the third part of this paper,categories of the incapable crime.The categories of incapable crime abroad: absolute or relative incapable, incapable in law or in fact, obvious incapable, recognized incapable, hidden incapable, incapable in broad, incapable in narrow, but these classification have not been universally accepted. The classification of incapable crime in our country: really incapable crime or one-side incapable crime, no fines incapable crime. But, these categories also have shortcomings. In author's opinion, incapable crime can be divided into three types: incapable crime in object and incapable crime in means; incapable crime in broad and incapable crime in narrow; fines incapable crime and no fines incapable crime. In the fourth part of this paper,penalty of incapable crime.Penalty of incapable crime include principle and basis of the penalty, the basis of penalty is to solve the problem of how to punish the incapable crime, Include: form basis, behavior conform to the overall constitutional features of incapable crime, essence basis, behavior of serious harm to society.There are following theories based on different judgments:Firstly,purely subjective theory.Secondly,abstract danger theory.Thirdly,absolute incapable theory, relative incapable theory.Forthlyspecific danger theory.Fifthly,objective incapable theory. Author agrees the theory of specific danger.The principle of penalty is the question about the attitude on the incapable factors, other counties have the principles as: Firstly, no punishment on incapable crime. Secondly, same punishment on incapable crime and regular incomplete crime. Thirdly ,mitigate the punishment to incapable crime. Fourthly, same punishment on regular incapable crime and incomplete crime. To the author, the incapable factors are the measurement factors of penalty, and should be promoted to the measurement of penalty in law.In the fifth part of this paper,legislative consideration of incapable crime.The law does not regulate incapable crime, so we punish the incapable crime as the incomplete crime. But scholars believe that such case attempt to punish the crime widely, so, we want to solve the problem by regulation in order to limit the punishment to the incapable crime.Take in to account the principle of lenient punishment, suggest adding a tenser in 24th of Criminal Law as: because of the mistake in means or objects, the crime result can not exit, but there is a certain degree of risk, called incapable crime. To incapable crime, the punishment should light, reduce or exempted from crime in preparation, crime in suspension or incapable crime.