A Study On Punishment Scope For Attempted Crime

As a core of criminal pattern, attempted crime is considered to remain as a hotspot of theoretical studies. And the punishment scope for attempted crime is also a difficult point defined by judicial practice. Our criminal law has made a clear provision for the concept of attempted crime and related punishment. However, due to the deficiency of special provisions and judicial explanation, the situation of inconsistent law enforcement occurred in the process of actual judicial practice, that influenced the implement of criminal legal principle and authority of law. From these, this essay discussed the problems of punishment scope for attempted crime in our country that combined the different cognitions related attempted crime all over the world. This thesis is divided into 4 parts.Part-1 starting from the history of attempted crime, introduced the production, development, and evolvement of attempted crime and legislations in China and abroad. In addition, explained the concepts of attempted crime respectively in broad and narrow sense and then concluded the provision of narrow-sensed attempted crime .That is, attempted crime is defined as a criminal inactive state that criminal implementation of a specific crime according to criminal law in the process of the deliberate crime, but failed for some reasons beyond actor's will.Part-2 discussed the theoretical base of attempted crime and firstly reviewed the theory of punishment for attempted crime in civil law system. Doctrine of objective attempt considers that the basis of bearing criminal responsibility for attempted offense is the objective fatalness that causes the result of important constructive conditions, instead of paying attention to actor's subjective malice. And excessively restrict the punishment scope for attempted crime. Doctrine of subjective attempt emphasis on actor's fatal character, regardless of consequence occurred or not, that extended immensely the punished range of attempted crime. While doctrine of eclectic attempt is the doctrine of combination (subjective and objective attempt), that seems quite scientific, but the different standards of its internal questions lead to uncertain standard in practice. After analyzing above three theories, the essay describes our position, that is, reflect the function punish crimes, protect human rights of criminal law, as well as pursue value aim on austerity of criminal law. What'more, we should carry out the criminal policy of tempering justice with mercy. Part-3 is the focal point of this essay. That is the construction of punishment scope for attempted crime. First of all, as far as punishment scope for attempted crime, the provision of criminal law can be divided three kinds of patterns by and large. They are general provisions, the combination of general and special provisions, and the combination of mixed and distinct provisions. The last two patterns reflected restricted attitude toward punished for attempted crime. While under the first pattern, the punished range for attempt is broad relatively and it is hard to decide which kind of crimes should be punished as attempt. Next, this part analysis the legislative models of our criminal law on punishment scope for attempted crime. The result indicates the drawback that is the inconsistence of provision and practice. About it, theory circle has had a lot of controversies. That causes the disaccord law enforcements and make against the implement of legal principle. Because of this, I suggest change the actual general provision to the combination of general and special provisions under the proper condition. Third, in my opinion, the criminal law field always advocates to restrict the punishment scope for attempted crime, but the branch point lies in which kind of crimes belong to attempted crime. The essay framed the punishment scope for attempted crime by using of actual theory researches and judicial practice. Our punishment scope for attempted crime should in felony. That is, those who received at least three-year sentence possess the attempted crime Strafbarkeit. That means other misdemeanors'attempted crime could not be punished. Above points only apply to directly deliberate crimes. However, not all the directly deliberate crimes exist attempt. The crime that got a conviction does not have an attempt. The attempted crime by a minor is not punishable. Of course, for those who have strong subjective malice and flagrant circumstances, the attempted crime should be punished. Based on further analyzing on punishment scope for attempted crime, I've made a bold vision for legislation. That is, change the section 1 of article 23 of criminal law as, in the process of directly deliberate crimes, the one is considered as attempted crimes that has have acted a kind of concrete criminal act according to special criminal law but failed due to the reasons beyond will. Then maintain the provision of section 2, attempted crime can be reduced punishment. Addition a section as section 3 after section 2 of article 23, that is for the punishment of attempted crime should accord with the provision of the special part of criminal law.In Part-4, I discussed two questions related to punishment of attempted crime combine with judicial practice. First question is whether attempt can coexist or not in the joint offence. I analyzed the positive view and negative view then explained my opinion. That is, the attempt can coexist in personal occasion. Second question is whether the offence of amount exist attempt. This essay exports different viewpoints from a case of blackmail. Then I discourse my opinion, which is we should divide the offence of amount to behavior offence of amount and result offence of amount. And the former has attempt.