The Legislative Mode Of Impossibility Of Offender:a Perspective Of Criminal Policies

Legislative model of impossibility of offender system is a kind of constructed style. Throughout the national legislation, not guilty of attempted legislative model is inspected from the three levels of the system, institutional and legal theory. From a macro perspective, it is divided into three parts:the binging mode of summarized provision at general provision and special provision at sub-relate mode of principle provision at general provision, case law and statutes of the mixed-mode. From a macrocosmic perspective, it focuses on whether impossibility of offender is guilty of a crime and shall be punished. So the legislative mode contains two:the fine mode and non-find mode, legal tradition and the basic theory is the three level to inspect the legislative mode. Relating to the macro level, the legal traditions of civil law countries perform the distribution at general provision and special sub-rule at the criminal law. The case law tradition of the common law countries shows a new feature that statutes modified and overthrow a case law. Examination the national legislative mode from the micro-level, the differences and confrontation between the fine mode and the non-punishment model hides the basic position of criminal law theory. As the theoretical basis of non-punishment model, attempted on the objective believe that not guilty of attempted does not make the result of objective risk. Attempted on the subjective considers that external act can shows the subjective vicious, and therefore not guilty of attempted should be punished.Impossibility of offender legislative models have the following functions of criminal policy:first, it affects the size of a country’s criminal ring;second, it shows the tendency of the countries and regions’criminal policy at specific period; and it guides and constraints of criminal justice activities. Combined with the current legislation, there are four functional defects of impossibility of offender system. Firstly, it isn’t conformity with the principles of legality. Second, the subjective tendency of China’s criminal legislation of impossibility of offender expanded the circle of crime; third, it grants a greater discretion in the judge. Improvement of impossibility of offender system can be divided into four steps:the first step, the criminality of impossibility of offender that hasn’t dangerous of infringement of legal interests is excluded by the way of judicial interpretation; the second step, through judicial interpretation,explicit its constitute feature and scope of application; the third step, criminal law specifies impossibility of offender system; the forth step, when the time is ripe, excludes clearly punishment of impossibility of offender. The process of perfection not guilty of attempted system is accompanied by the descending of the circle of crime and penalty circle and evolution of the basic position of Penal Code from subjectivism to objectivism. The purpose of demonstration and discussion of the legislative mode of impossibility of offender is to reasonable regulate crime, that is decided whether apply penalties for impossibility of offender acts, as well as different harmful behavior for what kind of punishment.