The Judgement Of “Dangerous” In Attempted Crime Due To Impossibility

Constrained by national legislation,theory and judicial practice,clarifying the conception related to the attempted crime due to impossibility in advance is necessary,in order to prevent a self-talking in the study of comparative law.The "attempted crime due to impossibility" referred in this article means behavior that cannot result in criminal results at the frist beginning.Allhough it can be classified as”subject impossibility”,”object impossibility ”and”method impossibility ”,this classification is only teaching significance,normative significance is very limited.The emphasis of "attempted crime due to impossibility" is not on its "impossibility",but on the understanding of "dangerous".There are“the objective danger theory”,“the specific danger theory”," the amending objective danger theory",“the subjective danger theory”,and "the abstract danger theory" according to the judging of "dangerous".The first three are classified as objective--oriented,while the latter two are classified as subjective--oriented.The "objective" nature of "objective danger theory " is reflected in its post,scientific perspective,"danger" means the possibility of result occurrence.the judgment of danger and the initiating of crime is actually one question in the view of objective danger theory,so the non-dangerous act does not have the character of an act.But the defect of objective danger theory is that,all things are determined to come to nothing from the ex post perspective.So there is no initiating in all attemt crimes.The specific danger theory use the piror perspevtive and the general judge,the dangerous result means general sense of danger.The prior perspective means it cannot master all the information of the event at the time,some scholars thus criticized the theory has lost its "objectivity".But in fact,"objective" doesn't means all facts,but means exterior?observable facts,and " the general public's feeling " of the objective existence.The contribution of the specific danger theory lies in the discovery of normative definition of danger:the general public's feeling of dangerous.But the flaw is that first,lacking the specific standards about abstraction,which can easily becriticized as "arbitrary";second,the judgment of dangerous and initiating may have contradiction: if the initiating means the possibility of outcoming occuring,there may be a "dangerous" but not initiating situation.In other words,the pubic feeling of dergerous usually means attempt,but if the results cannot happen radically,there is not an initiating act.This is probably one of the reasons why Japanese scholars abandon the specific danger theory and turn to the more difficult repairing work for objective danger theory.The objective danger theory's post perspective makes all attempted guilty of not guilty.Thus,the amending theory introducts the conception of "scientific general" and makes people judge danger at the time,so the initial impossibility and the afterward of impossibility can be separated clearly,but this doctrine remains establish the attempt theory on the possibility of outcoming occurring.Another amending theory try to assess the possibility of the occurrence of “absence factors”,which causes the result to not happen.Only if at the very low possibility can actors not be committed.But this amendment is a self-defeating position because its punishment of“gerenal dangerous feeling afterwards”,which means the amending is similar to the specific danger theory.Besides,this theory for the hypothetical assumption is completely without any normative basis.Classified as subjective theory,the abstract danger theory regard actor's plan as object of judgement,making general person determine whether the plan is dangerous or not.Thus the theory aims to protect the faith and trust of ordinary people towards law,achieving general prevention.While regarding actor's plan as object of judgement rather than the objective fact is criticized by the objectivist,it is based on the technical considerations: if we do not consider the actors' plan,intentional crimes or negligent crimes cannot be judged,initiating or daily behavior cannot be judged,difference between offences cannot be judged.In addition,in the absence of results occurred,the initiating of a crime would happen only in the accomplished crimes.because there is no threat to the legal interests in unaccomplished crimes.It is why we should examine the subjective factors frist.Unlawful is the judgement of right and wrong,the significance of putting actor's plan as object of dangerous judgement and initiating judgement is to declare the importance of acts rather than the results.At all time,abstract danger theory is considered as the product of "subjectivism criminal law".While there is no basic consensus on the definition of "subjectivism" and "objectivism" in China's criminal law theory,it is clear that the abstract danger theory is not equal to the subjective culpability,moreover,the consideration of actors' plan is the correct way to understand the nature of the attempted offense.In contrast to the objective view,China's legislative practice and judicial practice are also subjective-oriented.The abstract danger theory puts its emphasis on the maintenance of norms,making it more practical in China.