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The Basis Of Bearing Criminal Responsibility For Attempted Offence

Posted on:2011-08-09Degree:MasterType:Thesis
Country:ChinaCandidate:Y B HuangFull Text:PDF
GTID:2166360305981382Subject:Criminal Law
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The basis of bearing criminal responsibility for attempted offence is one of the fundamental issue of theory of criminal law. Many criminologists have made research into this problem and hold different views. However, their views are partial and still worth thinking over. Based on the exploration of the essence of crime, this paper will analyze and criticize the doctrine of objective dangerousness supported by the objectivism as well as the doctrine of dangerous character hold by the subjectivism. The author of this paper holds that the basis of bearing criminal responsibility for attempted offence lies in that the behavior of feasor has posed realistic danger to the interests protected by criminal law. Realistic danger is vindicated from the subjective aspect of feasor which is the externalization of mens rea. It is a kind of infringement to the basic human rights of all citizens. Since the behavior causing realistic danger can not be regulated effectively by other laws, it has to be regulated by criminal law, or the legal system will be under threat fundamentally.What is the basis of bearing criminal responsibility for attempted offence? This question has given rise to much controversy because scholars have different interpretations of the essence of crime. The writer thinks that penalty is the most apparent difference between criminal law and other laws. In essence, it represents such a kind of social relationship-the relationship between the basic human rights of individual and the basic human right of all citizens. Hence, the essence of crime rest on the infringement to the fundamental human rights of all citizens, so does the essence of attempted offence.The objectivism holds that the basis of bearing criminal responsibility of attempted offence lies in the objective dangerousness to the interests of law caused by behavior of feasor and that the objective dangerousness can be judged objectively. These points overestimate the value of objective aspects, in another place they are ignore the value of subjective aspects, so their view is partial. Firstly, essence refers to the intrinsic basis based on which one thing differs from another. While objective dangerousness (objective fatalness) can not separate criminal behavior from common unlawful acts. Therefore, objective dangerousness can only be regarded as the premise to determine a crime, rather than the basic factor to determine the character and the development of criminal behavior. Secondly, doctrine of objective attempt holds that the objective dangerousness can be judged objectively, but what criminal law regulates is the behavior of feasors. Whether the behavior of feasors is dangerous depends on its developing process and trend, while its developing process and trend are decided by subjective regulation of feasors. So, to correctly judge whether the behavior is dangerous, you have to take into consideration the subjective ideas of feasors. Thirdly, since criminal law aims to protecting the legitimate interests, it will not only focus on the objective dangerousness of behavior, but also explores the immanent cause leading to the objective dangerousness. Thus, regarding the objective dangerousness as the basis to punish the feasor violates the primary goal of criminal law. With regard to the above analysis, we can conclude that the view of doctrine of objective attempt is inappropriate.The subjectivism holds that the basis of bearing criminal responsibility of attempted offence lies in the dangerous character of feasors. However, the character is the coefficient effect of individual cause and social cause, among which, social cause plays an important part in the formation of character. So it is incorrect to attribute the dangerous character caused by social cause to feasor himself. Besides, psychologists hold that the occasional behavior of a person can not be regarded as the character of the person. Then, the einmal crime of a person can also not be taken as the basis to affirm that the person has dangerous character. Meanwhile, the subjectivists hold that it is quite difficult to judge the dangerous character so that the behavior of feasor has to be taken into consideration. However, behavior only has representing function in the theory of criminal law, in the opinion of the subjectivist. Moreover, the subjectivists also hold that the person who has committed a crime may not have dangerous character. In this case, penalty is improper. According to this premise, people who has not committed a crime may be an offender because of his dangerous character, while people who has committed a crime may be not the offender because he does not has dangerous character. This theory violates the principle of justice and is a kind of fundamental infringement of modern legal system. Taking the dangerous character of feasor as the basis of bearing criminal responsibility will inevitably involve in the judgment of dangerous character. To judge the dangerous character, you have to do some research to the feasor. This will involve in the privacy of feasor and relative personnel and at last violate the human rights of more people. Summing up the above analysis, the views held by the subjectivism are unconvinced."Danger" is the core concept in the discussion of the basis of bearing criminal responsibility for attempted offence, but there are different concepts and judging methods of danger according to current theory. In this paper, danger in criminal law refers to the possibility to infringe the legitimate interests. Whether there is danger should be judged from the subjective aspect of feasor. If feasor puts his "plan" into practice and the behavior will definitely lead to the harmful result, the behavior is dangerous. In attempted offence, the causes beyond volition of feasor are the main reasons for the failure of attempt. Since the causes beyond volition are not easy to verdict, we can only judge the danger of behavior from the subjective aspect to avoid this complicated problem. Attempted offence is criminalized because the behavior of feasor can cause real danger to the interests protected by laws and the danger is caused by the externalization of mens rea. In terms of value, the real danger of behavior refers to the infringement on basic human rights of all citizens. In technical level, this kind of behavior can not be effectively regulated by other laws; only criminal law can regulate it or relative legal system will be under threat fundamentally.In the above analysis, we discussed about the essential basis bearing criminal responsibility for attempted offence. While in judicial practice, we still have to discuss its formal basis. Amendatory constitution of a crime is the legislative authority of bearing criminal responsibility for attempted offence. It is developed and adjusted on the basis of the canticles in the general principles of criminal law. Since there is not any regulations aiming at a crime in preparation in most countries in the world, attempted crime is the borderline of the power of criminal punishment. Thus, to judge when the attempted offence is constituted, from the aspect of form, is quite important. initiate a crime is the formal criteria to constitute attempted offence. There are two aspects needing to be considered to judge whether a crime begins. Subjectively, the feasor aims to execute a crime and does not intend to stop the behavior. Objectively, the feasor has began to control the objective conditions and the behavior is illegal formally, and there is no reasonable explanation for it.In criminal law, attempted offence and Impossibility of Crime are two concepts closely related to each other. The differentiation standard between attempted offence and Impossibility of Crime has aroused much attention. The commonly acknowledged differentiation standard is whether the behavior will cause harmful result. The author of this paper holds that relative impossibility will constitute attempted offence and that absolute impossibility will constitute a crime. Absolute impossibility indicates that the cognition of feasor can not be translated into objective and that the behavior following the thoughts of feasor will not confirm to harmful result.
Keywords/Search Tags:the essence of crime, objective dangerousness, dangerous character, realistic danger, Amendatory constitution of a crime, Absolute impossibility
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