Study Of The Impossible Attempt

Appearance of the impossible attempt is to certain the range of the attempt and the attempt not guilty. It is appeared by the concept of "non-penalty of the attempt", which is accomplished by Becaria since 19th century. Since the appearance of the concept of the impossible attempt, scholars of criminal law has been debated around the penalty of the impossible attempt. As the different countries are affected by different ideology, so the views about the impossible attempt are also different, especially for the theory and legislation of criminal law. These theories and legislative practice, provides an indispensable basis for the study of the impossible attempt.There is not requirement in our Criminal Code, but as a theoretical classification of the attempted to study. This is mainly due to the lack of the argument of the subjectivism and objectivism of criminal law, but more reason is that our theory has always been insufficient attention to this issue, only in the judicial practice, regarding it as the attempted to commit. This is not only impede our legislation on this issue, but also likely to punish non-penalty of the attempt in judicial practice, and then violate the human rights. Therefore, the study of the impossible attempt can not only to deepen our awareness of it, but also can help us to clarify the boundaries of the impossible attempt and non-penalty of the attempt.In this paper, the structure is divided into five parts:Part one:Concepts and categories of the impossible attempt. This section to be studied on two levels, on the one hand according to the extra-territorial and China's criminal law theory, study the concepts of the impossible attempt, and then propose the concept of the impossible attempt. One the other hand mainly introduces the categories of the impossible attempt in different countries, and describes the contents of it.Part two:Legislation of the impossible attempt at home and abroad. This section is divided into three parts, the first part mainly introduce the legislation of the civil law, and as Italy, Germany and Japan for example. The second part, mainly introduce the legislation of the common law, and as England and America for example. The third part, returning to our country, mainly introduce the difference of Taiwan region and the mainland on the legislation of the impossible attempt, and then make forward to the shortcoming and observations of mainland.Part three:Composition characteristics of the impossible attempt. This section is one of the focuses of this article. As judging the impossible attempt, often involving non-penalty of the attempt, and sometimes confusing easily, thus the composition characteristics is clearly characterized is the key to recognize the impossible attempt rightly. This section describe the composition characteristics of the impossible attempt, and from act to execute a crime, nature can not succeed, awareness errors of the fact and risk of behavior four hands to describe. Finally, explain that specific risks should be adopted in judging the risk of behavior in China.Part four:The basis of the punishment of the impossible attempt. This section is also the focus of this article. The impossible attempt as a stop form of crime, it is necessary to study the essence of the impossible attempt if you want to examine its basis of the punishment. This part is divided into two level, first and second levels mainly introduce the theories of the basis of the punishment of impossible attempt outside and inside, and then straighten out the theory of the basis of the punishment. Finally, starting from our practice, proposed that social harm which subjective risk and the risk of behavior embodied in two aspects can the real basis of the punishment of the impossible attempt, and in which the meaning of the social harm is interpreted again.Part five:The defect and the forward-looking perfection of impossible attempt in our legislation and judicial process. This section is the last focus of this article. There is no legislation of the impossible attempt in current Criminal Law of China, combined with the long influence of subjective, subjective aspect is more stressed in judging the impossible attempt. Thus, the disadvantages such as violation of legal interest, out of subjective and objective etc are appeared. This section, starting from the analysis of criminal legislation and judicial practice of China, analyze in-depth the defect of the impossible attempt in legislative and judicial of China, and then put forward to its own comprehensive proposal.