Discussion On Basis Of Penalties On Criminal Attempts

Based on the standpoint of objectivism, essence of crimes is infringements or dangers caused by behaviors to interests and values protected by the country. Purpose of penalties lies in seeking justice, and essence of penalty initiated by the country is depriving criminals of certain legal interests, which is a sacrifice made by criminals in a forced way for legal interests of the country and the society and other personal legal interests.Theories on which penalties on criminal attempts are based involve opposition among subjectivism, objectivism, eclecticism and the theory about unification of subjectivity and objectivity in China. According to subjectivism theory, danger caused by subjective intention, personality and motive of a perpetrator serves as the basis for sentencing, for which penalty shouldn’t be imposed on a crime itself but the criminal.Subjectivism attaches excessive importance to protection of social order and expands the existence scope of criminal attempts, which goes against the standpoint of legal interests protected by Criminal Law. According to objectivism theory, crime refers to infringement and danger caused by behaviors of a perpetrator to legal interests protected by Criminal Law. Objectivism attaches importance to concept of behavior and deems protection of legal interests as a task of Criminal Law. Based on objectivism, Criminal Law is deemed as the last line of defense for protecting legal interests, which plays a role in reasonably standardizing and restricting power of penalty and eliminates the uncertainty in application of penalty and thus serves as a relatively appropriate theory for explaining the basis for penalties on criminal attempts. Eclecticism theory(impression theory) believes basis of penalties on criminal attempts lies in the fact that behaviors of perpetrators shake trust of the public on order of law and emphasizes two indispensable conditions of criminal attempts: Criminal intention and behavior of a perpetrator can shake the impression of order of law. Impression theory abandons the essential factor of crime, namely infringement of behavior on legal interests, so impression theory leans tosubjectivism and impression of the public about shaking order of law is a subjective existence, which has no specific operability. Deeming the principle of unification of subjectivity and objectivity as the guiding ideology, Criminal Law researchers in China believe that criminal responsibilities should be imposed on criminal attempts based on the fact that criminal attempt has four essential elements of constitution of crime. However, this is only a superficial analysis. Criminal attempts don’t serve as a correction for essential elements of constitution of crime but a correction of factors in essential elements of constitution of crime.Through evaluation and analysis on relevant theories, it can be seen on a preliminary basis that objectivism theory is relatively appropriate for interpreting penalties on criminal attempts. Based on different judgments on dangers caused by criminal attempts, theories of criminal attempts based on objectivism can be categorized into concrete danger theory and objective danger theory. As for concrete danger theory, based on circumstances recognized by ordinary people and circumstances specially recognized by perpetrators, whether dangers exist or not should be determined based on whether ordinary people feel consequent dangers or not. Due to inappropriate grasp of basis of penalties on perpetrators with criminal attempts, this theory tends to expend scope of penalties on perpetrators with criminal attempts and confuse some reasons such as determination of illegal activities and responsibilities, for which it is undesirable. Basic principle of objective danger theory is: In determination of a danger, all circumstances that may influence result should be taken into consideration, and determination should be made based on all factors from the objective standpoint. Objective danger theory adheres to ex post facto determination and emphasizes that dangers in criminal attempts are certain and real dangers to legal interests, so it narrows down scope of penalties on perpetrators with criminal attempts and realizes functions of Criminal Law for protecting human rights.However, according to some criticisms, adherence to objective danger theory may lead to the conclusion that all criminal attempts are impossible crimes, and criteria for determining danger in objective danger theory are unclear. Through analysis, the author believes that ex post facto danger described in objective danger theory is abstract possibility. However, criteria for determination lie in whether there arerandom and changeable factors in all the objective facts. As for objective danger theory, absolute objective danger serves as the basis for penalties on criminal attempts,which can ensure objective criteria for application of Criminal Law and has the legitimacy for application of penalties, so this theory should be advocated.