On The Impossibility Punishable

The impossibility theory in the past aims at distinguishing not guilty and attempted offense, but this kind of research on noumenon of crime level may trap into a drop-dead halt logically. On the one hand, it cannot effectively determine whether the not guilty should be punished or not on the level of nature of crime. On the other hand, it cannot provide judicial officers a standard that defines if a specific action can be judged as not guilty. Given this, this thesis starts its research from a new perspective that combines noumenon of crime and essentialism of crime to state it opinion regard to the theories of multidimensional predicament of impossibility punishment, theoretical basis and choice. The thesis points out those different scholars of all countries have different opinions on the quality and status of impossibility. At present, the main difference is that of the attempted behavior theory represented by German scholars and the non-criminal theory represented by Japanese scholars; at the legislative level, different countries have both punishment and undeserving punishment on impossibility; nevertheless, there is no legislation on punishment of impossibility in our country; It doesn't have a clear definition of attempted crime and impossibility in justice practice in our country, so does the relevant punishment. Based on the analysis of issues mentioned above, the thesis suggests that the impossibility is a kind of behavior doing no harm to the society and it cannot be punished should be added to the NO.23 in criminal law; “the impossibility does no harm to the society and should not be punished” shall be implemented in judiciary, and the impossibility, error of fact and impossible attempt should also be appropriately distinguished. The thesis is divided into three parts except the introduction and the conclusion with a totality of more than 40 thousand words.Part 1 points out that punishment theory of impossibility faces a multidimensional predicament. First of all, the theories of impossibility is quite confusing according to the different scholars; second, there is not a clear boundary between impossibility and attempted offense on the base of definition of impossibility; third, it is shows that the laws and rules in China didn't cover the impossibility by comparing the different instances of legislation on punishment of impossibility in other different countries; at last, several examples are listed here to introduce the practical difficulty in defining impossibility on judicial level.Part 2 analyzes the theoretical foundation of punishment of impossibility. At first, by studying some basic categories of criminal laws including subjectivism and objectivism, doctrine of criterion violation, theory of benefit aggression, handlungsunwert and erfolsunwert and making sense of the essential differences between impossibility and attempted crime, it points out that impossibility is kind of behavior which independent of attempted offense according to “noumenon of crime”; second, in the perspective of “essentialism of crime”, starting from the punishment theories including theory of society contact, retribution, prevention and danger to prove that the punishment of impossibility and conclude that the impossibility should not be punished. Lastly, in the perspective of criminal policy, by analyzing the relationship between penalty and morality, cost and efficiency of criminal law, and decriminalization to draw a conclusion that it is not necessary to punish the impossibility.Part 3 discusses about the choice of punishment theory of impossibility. First, theoretically, impossibility means that a doer, propelled by subjective dolus, implemented criminal only of his own understanding but cannot be defined as crime by law, so this kind of behavior actually should not be punished since it does no harm to the society; Second, the legislation should establish that the impossibility shall not be punished under normal circumstances; At last, in the judicial practice, we should pay attention to the relationship among impossibility, error of fact and impossible attempt so as to solve the confusing punishment of impossibility. Impossibility was defined as the doer had a wrong understanding just because he does not realize the fact of crime constitution and, as a matter of fact, what he does would not achieve the doer's aim. The error of fact was considered as the doer should have known the criminal character of his behavior. Impossible attempt is a kind of specific attempted offense failed because of accidentalia.