A Research On The Existence Of Crime Attempt In Indirect Intentional Crimes

No matter how a theory is logically correct or reliable, however, if its conclusiondoes not accord with common sense and convention in most cases or it can’t berecognized and accepted by people, then the theory is not so reasonable and withoutpractical operability. Concerning whether there is attempt existed in indirectintentional crimes, overseas criminal law circles and judicial practice circlesessentially hold a definite attitude. However, there is an diametrically oppositesituation in our country. Both the criminal law circles and judicial practice circles areone-sided to believe that there is no existence of attempt in indirect intentional crimes.The present general theory opinion at home is that a crime should be convicted on thebasis of the actual consequences in the case of indirect intentional crimes. Theconsequences determine the crime, that is, we should retrograde the doer’s subjectintent according to the consequences and butt the behavior nature with theconsequences. Therefore, there is only distinction between foundation andill-foundation in indirect intentional crimes, but no special form, that is, a crimepreparation, a criminal attempt and crime termination. However, it is illogical at all toretrodict indirect intentional crimes, which goes against the natural trend of crimeoccurrence and development and the general theory opinion may not coordinate withthe whole criminal law theoretical system in judicial operations. For example, in thecase of accidental defense, casual relationship cutoff, contemporary crimes, jointcrimes of direct intent and indirect intent, if the judicial application is dealedaccording to the logic of general theory opinion, conflicts will generate between thegeneral theory opinion and theories above, and then, in the process of judicialoperation, to retrograde indirect intention according to the consequences and toconvict in line with consequences will cause bewilderment in criminal lawapplication, which gives rise to conviction incapability and punishment incapability,and then suspicion of a little conniving appears or the results can not maintain a crimebalance. That’s why the results of the general theory opinion can’t accord with common sense and convention in most cases and can’t be accepted by people andruns counter to people’s justice perceptual intuition.This article will disclose the operation defects in judicial practice for theinexistence of crime attempts in indirect intentional crimes by means of imaginingcases to reduction to absurdity, question the general theory opinion and then deny itlogically, put forward an opinion that indirect intentional crimes are actually a kind ofincompatible disjunctive proposition, on basis of which, the existence of crimeattempt should be recognized. Meanwhile, the article will analyze whether there is aresulting risk in the case of indirect intentional crimes attempt combining with thepunishment foundation of attempted crimes, and put forward that the resulting riskcan be the affirmation standard of the establishment of the indirect intentional crimes,hoping to work out the conflicts above better in judicial practices, thus accuratelyaffirm crimes and fight crimes and put the general prevention and special preventioninto effect better, which makes the criminal law application better accords withcommon sense, convention and people’s justice perceptual intuition.