Research On The Theory Of Impossible Crime

Since the beginning of the19th century German punishment law home feuerbach cannot commit theory put forward for the first time since the research of controversies surrounding cannot commit and will never stop. Summary of the author from cannot commit, cannot be made with an distinction, inability to make standards, make the theory applicable to the four most of the study of the theoretical problems.The first part mainly introduces the concept of cannot commit, nature, the theory development and research status. Through the countries mainly of Germany, Japan and China cannot commit theory to explain and discuss, found that cannot commit concept is multifarious, but mostly from the perspective of "risk" to define it. After the author in carries on the combing, also put forward its own viewpoint, thought cannot commit refers to behavior person due to the fact mistake didn’t finish the crime, and there is no risk. And cannot make the nature of the problem, as different countries have adopted the basic position and ideas and differences, has experienced a series of transformation, in the birthplace of cannot commit Germany, not experienced the penalty to can be fined. In Japan, cannot commit is with an opposite. Introduced from Russia, but our country cannot commit theory cannot commit attempted cannot commit, is as an a type. But with the introduction of the theory of continental law system countries especially Japan cannot commit, many scholars believe that China’s general said cannot commit theory to expand the scope of criminal punishment, is not conducive to protection of human rights, the author agrees the criticism, and on the basis of definition of cannot commit is the nature of the proposed cannot commit crime is not punishment.The second part from the doctrine of punishment according to the risk and take two aspects, study of doctrine and cannot make a distinction between. Aiming to reduce subjective attempted offense, penalty and the theory of objective attempt, the author thinks that the objective attempt to avoid the improper wage penalty, is not conducive to civil rights, more suitable for our country according to punished. To ascertain the main risk of the subjective risk and objective risk two kinds of theory, and that the understanding of risk in the criminal law, should be the understanding on the level of specification, emphasizing both subjective and objective.The third part is the standard cannot commit to explore. The author through to the more influential nowadays abstract risk, specific risk, objective, summarized the dangerous said. Think the abstract dangerous said to the offender’s subjective vicious as punishment foundation, ignore the objective risk existing in the real world, easy to expand the scope of criminal penalty, so is not desirable. Objective risk said in Japan is a very influential theory, but its disadvantages too limiting the punishment scope of criminal law, and a series of fixed objective that are difficult to give a perfect standard of judgment. And specific risk doctrine of reasonable limits the scope of regulation, should both comply with the principle of a legally prescribed punishment of China and the adaptive principle, and more positive general prevention, also consistent with the requirements of the norms of criminal law, so advocate as the standard of our country can not make.The fourth part is cannot make the theory applies. Mainly aimed at the author supported by specific risk said the deficiency of the theory itself has carried on the card and explain, in a more conducive to deal with specific problems in the judicial practice. Clear the connotation of "ordinary people", it refers to "the average person in society", and when the average person "in the" social is dangerous is difficult to discern, can consult scientific knowledge, to help judge. And the offender’s "special" emphasis is the objective existence of the actors know, affecting the conviction, the average person have no facts. Finally, in view of any proposed theory needs to solve specific problems in practice, cannot make theoretical research is no exception. So the author with subjective don’t know, sell fake drugs behavior qualitative as the breakthrough point, from the relevant judicial interpretations, said to general theoretical criticism, and make use of the said specific risk point.