Study On Impossible Crime

In the traditional view, impossible crime, also known as impossible attempt, is a form of crime which is relative to and to be punished as the criminal attempt.However, this is a controversial issue in the theoretical bounds of criminal law, and there is no common understanding to the key issues, such as the definition of the impossible crime, the basis of the punishment of the impossible crime. All these issues lead to the situation that the judicial staffs have no idea in practice. It is of great significance of the study of impossible crime in both theoretic and practical area of the criminal law, however, China's criminal law scholars do not realize the importance of this issue, which leads to our study of this issue is not deep enough and the common understanding of this issue is unscientific and unreasonable. Given the importance of this issue, it is necessary for us to conduct in-depth study and make contribution to the theoretical system of this crime. In this dissertation, the author analyses the research on the impossible crime in the domestic and international theoretic area in the first, including the research of this issue in the continental law system, the Anglo-American law system and in China. On basis of this, the author makes a comprehensive and deep research of the relevant questions of the impossible crime such as the concept, the characteristics, and the classification of impossible crime.In the continental law system, there are three basic theories when judging whether it is guilty of an impossible crime. The theories are as follows, German is the country which considered it is not guilty of a impossible crime, and according to the theory of impression, it is dangerous when a person's act is to be considered of danger, and this act is to be punished, otherwise, it is not guilty at all and should be punished as criminal attempt; in France, it is also considered that the impossible crime should be punished as criminal attempt; in Japan, the theory of the impossible is most abundant and the theory of specific danger is the popular theory, but in recent years, the theory of the objective danger becomes a new and powerful trend, which makes the controversy of the impossible crime is between the theory of specific danger and the objective danger. In China, the criminal legislation does not make the provisions in detail, and there are many controversial issues of the theoretical study of impossible crime. In the common sense, the impossible crime should be punished as the criminal attempt.There are many definitions of the impossible crime, such as the impossible attempt, the system and mechanism of innovation and the unpunishible impossibility, in which the system and mechanism of innovation is the common concept. However, after the research, the author considers that the impossible crime is more appropriate. Meanwhile, there are also many theories on how to give a definition of the impossible crime. Many scholars define the impossible crime from the person begins to crime, the crime is not accomplished and there is a misunderstanding of the person. The author refers to ideas that the impossible crime is a crime that the person begins to crime, and the act is dangerous from the outlook but can not result the accomplished offense because of the misunderstanding of the criminal fact. Whether the impossible crime is guilty refers to the judgment of whether the act is dangerous or not. The author introduces several standards of the judgment and makes a conclusion that it is more appropriate to judge by the standard of objective standard. According to the principle of the criminal law that it must be a conformity of the subjective and objective, when the objective aspects of the implementation of the perpetrator's behavior against the risk of legal interest, the subjective aspect should be identified as having criminal intent, and it can be considered a criminal attempt; when the perpetrator is not an objective of acts against the danger of legal interest subjectively, even if they have criminal intent, it should be recognized as non-punishment behavior.According to the traditional view, the author makes clear that the impossible crime can be identified as the impossibility of means and the impossibility of target. In the impossible crime of means, we should make a judgment on the criminal responsibility of the crime when identifying which is the mean of the crime; in the impossible crime of targets, we should make a judgment on the criminal responsibility of the crime by indentifying the relation of the criminal object and the criminal target according to the principle of the conformity of the subject and the object. One of the most important objective of the research on the impossible crime is to make sure that it is a criminal attempt is still a crime which is not guilty. After the above analysis, the author draws the following view that we should analyze the subjective and the objective aspects when make a judgment on whether an impossible crime is guilty, which means that we should identify whether there exists subjective criminal intent or negligence of a person after the fact against the law happened to avoid the subjective blame.