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The Study On The Issue That The Punishment Of Impossiblity

Posted on:2014-02-04Degree:MasterType:Thesis
Country:ChinaCandidate:K Y GuoFull Text:PDF
GTID:2246330398479693Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
Impossibility make a hot issue as a criminal form of civil law criminal law theory first founded, now is the civil law and common law criminal law theory study. Feuerbach who the father of modern criminal law first proposed the concept of impossibility-since academia around can not make research and debate has not relented, and the various theories, endless genre. China’s criminal law through that view can not make lead to a crime of attempted crime will not succeed for reasons other than the will refers to the act has started to carry out criminal acts, including the object and tools impossibility. Impossibility should be punished as an attempt to commit a type based solely on Article23of the Criminal Code of attempted criminal penalties principle that not guilty can be fined. Such a simplistic approach, there are serious flaws, and therefore can not make qualitative, that can not be guilty of an attempt to commit or does not constitute a crime, whether Punishable sin or non? Related to whether the country will expand the range of application of the penalty. Impossibility of the research, particularly the study is significant punishment impossibility.By Japan impossibility theorists, our doctrine impossibility a systematic study, but did not see the contents of the attempted crime subject to change after the introduction of the new penal code in1997, generally acknowledged has been dominated and followed down, that impossibility attempted crime to commit one of the attempt crime. Later, Xingliang scholars questioned pass, first pass is essentially a subjective incrimination, regardless of the objective to achieve a behavior and harm results, as long as the behavior is the behavior of the implementation of subjective understanding are judged dangerous; Secondly, generally acknowledged the objective completely no against law beneficial behavior recognized as an attempt to commit and to be punished, not in line with the Criminal Code to protect the legal interests purpose; but this neglect of objective completely without risk of only understanding of error due to the perpetrator’s punishment as a crime is bound to expand the scope of criminal law penalties. Through more and more scholars have a negative attitude, and this is due to China since the1990s,the theory of criminal significantly affected by the impact of Japanese criminal law theory results. Theory of criminal law in Japan after World War II, showing a trend that is more objective, because scholars believe that crime subjective considerations agree with the theory of objective attempted to reduce and gradually help to protect the personal interests of nationals. That the1979Law in our country are subjective Criminal Law, and the1997Criminal Code is biased in favor of objectivism is the common understanding of some Chinese scholars, they are more accepted the Japanese academic point of view, thus strongly advocated the objective theory of the criminal law.The author believes that the debate on the issue impossibility of a window, seen through the windows, it is not only the criminal law the main objective of the dispute, as well as for the criminal nature concept selected value, but also should be thinking about criminal law The aim is to protect the legal interest or the interest of the legal order? The function of the norms of criminal law protection function priority or priority security function? Risky behavior and the risk of how to identify the important issues that can not be guilty. Faced with these problems, we must study impossibility of the theory once again rational thinking:impossibility make the proposal of the concept of reasonable scientific; what is the situation of impossibility, how to determine the scope of its establishment; can not afford to make the judgment, how understand the meaning of "dangerous", how to determine whether the "dangerous", we should take what kind of doctrine; criminal legislation should be how to regulate...... these are the judge impossibility of whether the penalty as well as an important basis for penalties to be imposed and premise of our legislation should be how to make perfect. In view of this, I intend to express their views on several important issues impossibility can be fined.
Keywords/Search Tags:Impossibility, risk, possibility of punishment, legal interest
PDF Full Text Request
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