Not Attempted To Commit The Basic Theory To Explore

The theory impossible attempt is an both antique and modern problem. Since Bach, a Germany coporal punishment scholar, had applied the problem into his works firstly in the beginning of 19 century , it becomes a focus of research and argument in the field all over the world. In the beginning of 20 century, the theory of impossible attempt being introduced by Chinese so as to be established on the concrete criminal law system.In recent years, With the rapid process of academic interchange between Chinese and foreign countries , we can find out there are the great differences between Chinese and foreign countries on concept and legislation. Because of the difference of history, the establishment of the discipline of criminal law relates with the criminal law system of Soviet Russia socialism; Since reform and opening-up policy, we have learned and borrowed more from the thoughts of continental criminal law with the German and Japanese as representatives. It takes on the ideological gap between soviet Russia criminal law and German and Japanese such as to feel confuse on theory to some extent.This paper is composed of three parts include of the concluding remarks,about 30,000 character.PartⅠ: The overview of the impossible attempt theory.This part is to define the concept of incapable not-realizing crime firstly and research from two respects, for one thing, we make an across comparison between continental law system and anglo-american law system. For another thing, we vertically introduced the China's research status of the theory.PartⅡ: A new definition of the penalty of the incapable not-realizing crime.It is the important point of the paper. To comment on the nature of penalty of incapable not-realizing crime based on the danger. The authorities' position is from the three theories. The first one is the behavior' s danger which is adopted by Subjectivism. It concludes the main point from the school of criminal anthropology and the school of criminal sociology. The second one is the nature of danger which is the threat for the ideal states of legal interest . The last one is the result danger which focus on the afterwards danger. The author has his own view on the introduction above. That is , you cannot absolutely adopt either of two, but to objectively analyze the danger on the basis of the compromise methods, to combine with the possibility of danger, to research deeply the essence of crime and back to judge whether the legal interest would be infringed or not. After analyzed the danger, he thinks the penalty of the incapable not-realizing crime based on the infringement of legal interest and regards the danger as the judgment standard of infringement of legal interest. On the basis of it , the author critically points out the weaknesses of China's common theory, namely, The common theory not only ignored the objective danger and expand the punishment range of behavior, but thinks the crime is punished by his consciousness to his wrong behave . Therefore,PartⅢ: The determination of the incapable not-realizing crime.The part also is important, there is the substantial differences of behavior patterns among the incapable not-realizing crime, illusion crime and the insufficient facts. Therefore, it great influences on the comprise elements of the incapable not-realizing crime. Considered on the incapable not-realizing crime belongs to the attempted crime, its comprise elements should reflect the basic features, and we should state the danger of the behavior. Because this is the start with penalty to the incapable not-realizing crime, the author described the comprise element of the crime on the basis of the concept of executive conduct of intention crimes, the behavior with danger and attempted crime, which the behavior with danger is the core element.