Self-criticism Of China’s Position On The Impossibility Of Crime

Since the problem impossibility of crime been proposed by criminal law scholars from Germany Feuerbach, the controversy has never stopped. The Republic of China since the introduction of the concept impossibility of crime, the study of impossibility of crime has not stopped. Today the height perfect criminal legislation, the prosperity of the theory e research on the problem of impossibility of crime. It is legal practice in handling practical problems encountered make me pay attention to the problem of impossibility of crime. Although the theory can not make the problem of extreme prosperity, the debate but also continue, the traditional concepts of criminal law can not be committed to the positioning of criticism by most of scholars. The main criticism is a reflection of the traditional theory of criminal law impossibility of crime, this also with the position taken by our criminal legislation relevant. This stance is not guilty of legislation and development of our criminal law and there is a certain contradiction. This also led to our country that can not commit to take legislative and judicial workers in the judicial practice contradicts the practice. This is a problem I encountered in the practice of law. So I hope that through this article, firstly, to clarify the basic problem of impossibility of crime. Mainly related to the concept of Impossibility of crime, and the nature of impossibility of crime; Second, analysis of the position of our country at this stage can impossibility of crime of criminal law issues taken. In recent years, mainly from some of the relevant provisions of criminal legislation and judicial interpretation, analyzes its contradictions and judicial practice; Third, learn a foreign national positions and related theories can not make the problem, our proposed criminal legislation is not perfect legislation may be guilty of the problem, in order to guide our judicial practice, to achieve harmonization of legislation and practice.This paper takes the analysis of comparative law and case studies that relate to impossibility of crime. On the one hand the article more substantial comparative study of foreign countries can impossibility of crime of legislation and issues related to academics, compared to not make problems for our reflection. On the other hand for the study of the problem can impossibility of crime, not guilty also compared the correlation theories that attempted crime related theories make a distinction. IT is necessity that impossibility of crime of the criminal justice system to establish the status of exposition. For the author of the article supporting arguments, mainly made by the Supreme Court based on the analysis of some typical cases, and to take a certain amount of academic discussion of many cases, to make a distinction between the author point of view.By comparison with the theoretical study of foreign legislation impossibility of crime for the following major issues:first, impossibility of crime legislation and legislative developments conform to the criminal trend contrary. With the development of society and economy, Mitigation of punishment is an inevitable trend in the development of modern society, like Japan can not make the punishment for making a clear limit for qualifying, is not considered a crime be punishable. Although China is currently no legislation, but from China’s criminal law amendments abolished the13eight death penalty charges can be expected, our legislation on penalties also tend to be more playful. This is also for our country to be implemented though it does not have the dangerous behavior of some of the acts committed with the traditional doctrine will not be punished as a criminal attempt to distinguish, consistent with the principle of implementing the objective and subjective. Second, for impossibility of crime the relevant legislation and judicial practice is not uniform. Although not mentioned in the criminal legislation is not guilty, not guilty and will be attributed to a case of attempted crime shall be punished. However, in judicial practice, the judge did not completely follow the traditional theory of criminal law and criminal law, not guilty of the crime of attempted distinction in the trial phase, although relatively few situations impunity, but there is no doubt affirmed the existence of not guilty, affirmed the distinction between impossibility of crime and in inchoate crimes; third, not guilty of the crime of attempt to distinguish the dangerous judgment theory of choice. If you want to not commit the crime of attempted distinction, then there is no doubt, and not guilty of criminal attempt to give delineate a boundary. Not guilty of the crime of attempted boundaries that the risk of infringement of legal interests-not beneficial dangerous violations are not committed. How to determine whether a dangerous infringement of legal interests, this is a dangerous theory. It is the focus of most scholars argue, and articles of impossibility of crime related eventually become articles how to determine danger on the theoretical. But in fact, no matter what the danger judgment theory, there is its own inadequacies, different countries choose different risk judgment theory, such as Germany, the "impression" is through the theory that the specific dangers of Japan said that its pass said, but regardless of that kind of theory has its own shortcomings. I do not tend to judge and choose what kind of danger theory. And think to judge the risk of infringement of legal interests should distinguish between facts and normative level, to consider whether the risk of all dangerous judgment theory mainly involves three aspects:determining point in time, materials and judgment criteria. According to the purpose of punishment, for three standard refinement, rather than blindly choose the kind of dangerous judgment theory.For the above analysis can impossibility of crime of foreign research and theory of judicial practice, the author further said:It is necessary to perfect Impossibility of crime on criminal legislation. In criminal legislation can not commit for the problem, not guilty of the crime of attempted behind the increase in provisions in the Criminal Code provisions, and by the relevant judicial interpretations clear guidance of judicial practice.