Study On Construction Of Legislation Of The Crime Of Impossibility In China

In our country，the crime of impossibility is not a legal concept, even in theoryhas not received due attention, the traditional theory of criminal law just as theattempted crime a punishment. In fact, both theoretical research and judicial practice,cannot make should have its own value, especially in the traditional theory of criminallaw in the criminal theory and the objective of the development trend of attemptedviolation, and the restraining criminal law principle does not coordinate. Therefore,we should redefine the incapable crime concept and category, the establishment of anew criminal theory system.The whole text is about2,5000characters and fall into four parts:The first part is the summary of theoretical research on the crime of impossibilityin China. This part of the country can make the course of study are summarized, putforward not to make the three phases of the study, namely the research blank stage,initial presentation of stage and analysis phase, and that our country can’t make astudy of true prosperity stage is the analysis phase.The second part is the overview of foreign impossible theory. This section offoreign impossible theory is summarized. Mainly introduced the impossible theory inGermany, Japan, France, Britain, the United States and other countries in the courseof development, especially expounds the impossible theory in Germany, Japan andFrance in the evolution process, and summarizes the criminal theory in these countriesgrowth characteristics.The third part is to make a redefinition of the theory of the crime of impossibilityin China. This part makes a redefinition of the theory. The first comprehensive reviewof China s criminal theory current situation, on this foundation, to our country can notmake the concept undertook be limit tinged afresh, think not crime refers to the act ofcrime intention realization, but because people act on cognition errors of facts and thenature of the act may not cause of crime occurs, do not make is the essence of lack ofinfringement of legal interest risk. The attempted crime is for some reason can not becompleted, in the nature of the act have realized the possibility of criminal, so there isno distinction can be attempted crime and no guilty attempted necessary. Therefore,China’s traditional sense of the impossibility (i.e. no guilty attempted in accordancewith the nature of the act is to achieve) the possibility of criminal are redefining thecriminal attempt and impossibility. According to the definition of the concept putforward after cannot have not committed four characteristics and classification. and tomake the legislation conception of the crime of impossibility.The fourth part is to make the distinction between the attempted crime and thecrime of Impossibility. This part of the attempted offence and the crime ofImpossibility are discussed. First introduced the foreign impossibility of risk judgment opinions and views of the focus of debate, and then again to our countryscholars undertook simple analysis, finally in the critical from various domestic andinternational viewpoint, think risk judgment should be after identifying behaviourwhen in the presence of all the facts to judge data, standing in the behaviour when theposition, according to the objective law of cause and effect for the specific judgment.Behaviour was objectively has the results of realistic possibilities, but due to accident,accidental factors leading to findings did not occur by its offence; behaviour wascertainly not possible result or results in the possibility of extremely low is not guilty.Can be called the modified objective danger theory.