The Study On Impossibility In Common Law

Since impossibility is created, much attention has been paid to the theory. Continental law system and common law system have formed a set of their own theory. At common law, there are two kinds of impossibility: factual and legal. Legal impossibility is a defense; factual impassibility is not. Factual impassibility should be punished as attempt, while Legal impossibility will be acquitted. Continental law system has developed a complex theory, based on how to distinguish impossibility from attempt. In our criminal law, there has only the definition of impossibility attempt. The traditional view holds that impossibility attempt is a type of attempt, and should be punished. In the process of reconstructing the theory of impossibility, our country has focused much on the Continental law system and not enough on the common law system. This paper selects the representatives of common law system, the Criminal Law of England and American, and provides an overview about impossibility of common law system from five aspects, the definition of impossibility, classification of impossibility, the regulations of common law and statute, the controversy and criticism about traditional view. This paper has used comparative analysis, case studies and other methods to give a comprehensive introduction about impossibility in England and American. Finally by analyzing, we draw the conclusion that our country can not apply the theory of impossibility in England and American. But it still offers a lot of theoretical reference for our further study on the theory of impossibility.This paper is divided into five parts. The first part aims to clarify the definition of impossibility of common law system, impossibility in common law system is not equal to impossibility in Continental law system and impossibility attempt in our country. It is also different from mistake in common law system. The second part gives a brief introduction about impossibility in England. English common law has established the general principle of impossibility by the case of Horton v. Smith, but in later cases do not completely adhere to the general principles established in Horton v. Smith. The statute also does not have clear-cut provisions about impossibility, which leads to confusion when applying the general principles of the practice of impossibility. The third part gives a brief introduction about impossibility in the American. In order to solve the dilemma of distinguishing between fact and law impossibility, many scholars have proposed that the general principle should be modified. There are three views. The fourth part describes the background of impossibility in common law system and the criticism against traditional views. The traditional theory of impossibility shows an obvious subjective tendency. Many scholars began to rethink the traditional views and try to reconstruct the theory of impossibility based on the perspective of objectivism. The fifth part introduces the theoretical reference for our country criminal law.