Study On The Risk Judgment Of Attempted Attempted

The basis of bearing penalty for attempted offense is its dangerousness.The focus point is the dangerousness’s meaning and its judgment method.In mainland China,subjective culpability is prevailing,which is urgent to be handled radically.The judgment of dangerousness about attempted offense must be based on position of objectification.It is beneficial to demonstrate this from the perspective of comparative criminal jurisprudence.The attempted offense theory of mixing subjectivity and objectivity,adopted by Germen dominating academic theory,is determined by its unique legislation,which has its own contradiction.The objectified theory in Japan is worthy of learning since there is no obvious position in its criminal code.The objectified theory was explicitly adopted by its legislation in2005in Taiwan,which we can draw jurisprudence lessons from in the view of hermeneutics.The dangerousness construction and its judgment should use a substantive objectivity standard.The material of judgment is the solid foundation. The pure subjectivization theory,abstract dangerousness theory.impression theory and concrete dangerousness theory must be criticized..The judgment material and judgment subject cannot be mix up,and the criterion of "general person in society" is well proper.Since dangerousness judgment of attempted offense is a part of illegitimacy theory,its fundamental judgment position and concrete judgment method can affect other issues in illegitimacy field systematically.Firstly,only by resolving the problem of dangerousness structure of attempted offense,can the existence scope of attempted offense be distinguished clearly.Accordingly, the potential damage offense is incompatible with attempted offense.Secondly,the judgment principle can be applied in dealing with the decriminalization of impossibility.Thirdly,if the infringer’s legal interest is deceased to zero, the haphazard defense will not cause any dangerousness of legal interest violation.So it belongs to the object impossibility.In short,The judgment of attempted offense dangerousness must begin with the outside of the behavior,base on concrete and objective danger of the legal interest violation,and emphasize the prior position of objective elements in judicial logic.Hence,it is of great significance to return to Feuerbach and the Classical School.