The Study Of The Penalty Of The Impossible Attempt

Western criminal law scholars has debated impossibility punishable a long time, according to the Scholars’preference on subjective and objective:the common law system focus on the identification standards of the dangers of behavior, Theories about impossibility in Criminal law of continental law system is very complex. There is basic opposition of subjective theory and objectively theory, can be divided into subjective theory and objective theory, the two doctrines system. Within the two doctrines system can be broken down a different doctrine:Based on the understanding of the danger of the judgment benchmark, there are "purely subjective theory " and "abstract danger theory ","specific dangerous theory " and "objectively dangerous theory ". Backdrop of separation of common law and civil law, Two legal systems have different characteristics about punishable of impossible attempted. Due to the different positions, each doctrine in criminal law theory and legislation about impossible attempted different understanding. The point of view of each school and national legislative practice provides a useful reference for our study impossible attempted theory and looking for punishable basis of impossible attemptedIn the existing criminal laws and regulations in our country, do not explicit admit the concept of impossible attempted, impossible attempted problem still remain in the phase of theoretical research. Throughout research on the attempted crime and impossible attempted of Chinese scholars, has certain reference significance for guiding judicial practice. For example:admitted the classification of be guilty of attempted and impossible attempted, which is useful for right conviction and sentencing in practice; Types and titles of impossible attempted should adopt "tool impossible attempted" and "object impossible attempted"; Determine the impossible attempted establishment scope should be in accordance with the specific risk criteria; The basis of the impossible attempted criminal responsibility is Subjective culpability and objective of criminal behavior. Nature basis is its harmfulness.During the discussion of penalty of impossible attempted, we stated from five aspects: First, Determine the object of discussion, to sort out use context of the "impossible" and "impossible attempted. This section details the use of both in theory and in practice. These two concepts in the theory and practice often mix, clearly the difference on the connotation and extension of the "impossible"and "impossible attempted" is the premise for us to further understand the impossible attempted.The second is to clarify the theoretical pedigree of impossible attempted, focuses on civil law system theory doctrine of impossible attempted, such as purely subjective, abstract danger, specific danger and objective danger, and sketched out the confrontation scene of subjectivism and objectivism. In addition, summed up several major controversy about impossible attempted in China, including the attempted type, the impossibility of instruments and objects, superstition prisoners and so on, And demonstrates division of the impossible attempted, Construction of the minor premise for further demonstrate risk which is essential attribute.Third, building identified standard for impossible Attempted. From the angle of constitutive elements of a crime, take "The behavior embarked","Cognitive errors of criminal tools and criminal object" and "behavioral risk" as identified standard of impossible Attempted. Focused on demonstrate the standard of behavior start, the perpetrator’s cognitive errors on fact and other issues. Initially involved in the formal requirements and the substantial elements of the behavioral risk,Forth, Key demonstrated "risk", which is the focus and core of this article. About the three identified standards of impossible Attempted, its core is to judge the behavior whether has the risk. Because the risk is the fundamental distinction between the guilty and not guilty, is the essential difference between impossible attempted and superstitious offense, also is the central basis of impossible attempted punishable. Judged the risk should base on specific danger. Set up a double standards, Identification of risk should be based on general cognitive standards, but in exceptional circumstances, the special knowledge of the perpetrator as a reference.Fifth, based on summary and reflect our legislative and judicial practice, to provide some reference for China’s criminal law practice:To establish the concept of limiting state power of punishment on the ideology, standing in the position of the objective emphasis on the objective behavior of the risk, Proposed clearly defined impossible attempted in legislation, to follow the example of accomplished offender\Be guilty of attempted established progressively decreasing sentencing mechanism. Strict distinguish can not be guilty of attempted and can be guilty of attempted\the superstitious offense and unrealized offense that is not punishable. Oppose the expansion of the right of penalty and subjective imputation.