Research On The Scope Of Existence About Attempted Crime

With the emergence of crime,attempted crime appeared.However the development of its theories and the definition of its concept are the fruits of modern criminal law.The thinking about penalizing attempted crime has been existed in ancient China,but the legislation has not defined the concept of the modern sense of attempted crime because of the limitation of times.According to China’s criminal law,the definition of attempted crime which takes the idea of obstacle attempt is a narrow concept. Generally speaking,on the basis of China’s traditional criminal theories,unrealized offense is treated as attempted crime,which has many flaws.Unrealized offense should not be considered in the scope of attempted crime.The characteristics of attempted crime are the form elements of attempted crime,which is not only the the main basis of judging the establishment of attempted crime,but also is an important basis of distinguishing from other related forms of crime.Researching the characteristics of attempted crime can further clarify the concept of attempted crime,explicit attempted crime’s stage in crime and distinguish the boundaries with other criminal forms.The scope of existence and the scope of penalty about attempted crime belong to different concepts.Although there is a link between them,they should be discussed discretely.Lots of criminal law theorists probe into the range of existence about attempted crime,but they have not reached a consensus and have not clearly summed up the scope of existence about attempted crime’in China’s criminal law.As a result,theory cannot guide the practice well.A reasonable definition to the scope of existence about attempted crime contributes to solving the problem that the theory study does not fit the social actual.lt can not only enrich and develop the theories of attempted criminal patterns,but also provide theoretical support and operational standards for judicial practice.As the theoretical basis about judging the possibility of the establishment of attempted crime is unified,and therefore there is a need to sort out and select relevant theories.The punish-ability of attempted crime is an important feature of attempted crime,an essential attribute of making attempted crime being the crime,and an substantive element to judging the establishment of attempted crime. Furthermore,it has also become an important factor in determining whether those criminal acts which do not infringe legal interests are attempted crime or not. I think that the speaking of result which is a part of objective and substantive speaking is more rational through analyzing the existing theories about the punishment of attempted crime.There are disputes about working theory,including subjectivism,objectivism and eclecticism,but this is a debate on act of perpetrating itself actually.In fact, the debate on working theory has turned into the argument over the basis of punishment on attempted crime.If the substantive and objective theory is treated as the basis of attempted crime’s punishment,so we also should take the same theory on the identification of working. Besides,the patterns of essence of crime directly affect the judgment on attempted crime’s establishment,and two different patterns including the pattern of accomplishment and the pattern of establishing a crime both have their own advantages on judging the establishment of different types of attempted crimes.After a comprehensive survey,it can be considered that China’s criminal law may not have an unified pattern about the essence of crime,and it is necessary to identify different patterns according to different provisions.After a preliminary research,this paper puts forward an point of view that our criminal law regards the establishment of crime as the pattern of negligent crime,circumstance crime and dangerous crime.In addition,distinguishing between sentencing rules and aggravated constitutions in the condition of legal punishment’s upgrade is very important to clarify the question that attempted crime exists or not exists in aggravated offense by circumstances.Of course,comprehending the plot of limited punishment’s scope and the nature of resultant factors also plays a key role in judging attempted crime.In terms of the judgment on the possibility of attempted crime’s establishment,it is necessary to combine the understanding and make an integrated analysis of three factors including the form elements of attempted crime’s establishment,the substantive elements of attempted crime’s establishment,and the constituent elements of criminal law,and therefore it is a comprehensive judgment.When making specific judgments,we should draw a clear distinction between the primary and the secondary to these aspects,and one of them is likely to play a decisive role in deciding the existence or in-existence of attempted crime.After a comprehensive survey for some crimes and the classification of specific crimes,it should be considered that indirectly intentional crimes have attempted form,transformed crimes of robbery have attempted form,aggregated consequential offenses have attempted form when the aggravated results can be constituted by intentional crimes,aggravated offenses by circumstances with the aggravating circumstances as the constituent elements have attempted form,unreal criminal omissions have the possibility of the establishment of attempted crime.However,negligent crimes,circumstance crimes,dangerous crimes,aggregated consequential offenses which consist of the element of fault-liability,aggravated offenses that regard the aggravating circumstances as the sentencing rules,and real criminal omissions shall not be deemed to have the possibility of the establishment of attempted crime.