Discussion On Impossible Attempt

In recent years, increasing emphasis is put on the study of the attempted crime problems in the criminal law field, but the analysis on its specific forms is not very comprehensive and in-depth. Especially the lack of unified understanding on the issues of impossible crime, which results in different outcomes of the same case or the outcomes exceed the acceptable range of some ordinary people in judicial practice. In response to the problem, the writer believes it is necessary to study impossible crime, especially on the implementation of rewards and punishment. This paper analyzes the issues of impossible crime from the following parts.Part I:Study on the basic theory of impossible crime. The writer redefines the impossible crime based on its original definition. One should first distinguish it from impossibility in order to research the impossible crime. The existing criminal law theory sets up a false dichotomy between them. It is generally believed that it is a kind of attempted crime and is punishable. The opposite opinion holds that it refers to non-criminal behavior of those who are not the crime. The writer does not think it is necessary to do so.Actually we can regard impossible crime as a super ordinate concept, further divide it as punishable impossible criminal attempt and non-criminal impossibility and then study their standards. Besides, the writer will make an analysis on its theoretical achievement in continental law system.Part II:Impossible crime under the legislative vision. In this part, the writer analyzes different legislative patterns of impossible crime abroad by means of comparative analysis. One can learn from the current provisions of criminal law that there are no specific provisions on issues of impossible crime in our country’s criminal law, which is really a pity. Because cases related with impossible crime are all discussions on important issues such as crime and non-crime, punish ability and non-punish ability. The legislation blank in the field will weaken the protecting function of criminal law.Part III:The range of impossible attempt. In this part, the writer takes a thorough analysis to its four constitutive elements. The constitutive elements of the former include: the act to execute a crime, behavior with real-life fatalness, criminal attempt and the reason comes from the cognition errors of criminal facts. On condition that the criminal behavior matches all this four constitutive elements, it can be affirmed as impossible crime and inflicted criminal punishment. Simultaneously the difference between impossible crime and superstition criminal and further confirmed the constitutive elements of the former.Part Ⅳ:The punishing justification of impossible crime. The basic principle of responsibility theory in our country’s criminal law is the integration of subjectivity and objectivity. From the angle of the essential elements of impossible crime, the behavior which is according with the standards of constituting the integration of subjectivity and objectivity will also fit the responsibility principle and has punish ability.Part V:Existing problems and countermeasures in impossible attempt. The reform tendency of in our country’s criminal law leans to the criminal objectivism. But through in-depth analysis, it is found that the current theory is the doctrine inclined to subjectivism in criminal law. This is not corresponding with the developing trend of criminal law. Seeing from the present criminal policies putting in force in our country, the modesty of criminal law is paid more attention. Therefore this requests criminal law to do some things and leave some things undone.Especially when it refers to the issues of impossible crime, criminal law should reduce its adjustment range to prevent from excessive intervention and aggrieving the human rights.Nowadays, the penalty reprieve is one of our criminal policies. It has great significance of policy implementation by accurate at impossible crime and non criminal impossibility, at the same time improving criminal legislation of impossible crime.