Research On The Problem Of Impossible Crime

Since the theory of impossible crime was put forward by the German scholar Feuerbach,the debate in the theoretical community has always existed.Although impossible crime is considered unpunished at first,there are still many different opinions in the course of theoretical development.Scholars have different attitudes based on different positions as to whether they can be punished.In different countries,there are different titles.This is also closely related to the attitudes that countries hold.If you call it impossible attempt,it generally indicates that it was a type of the attempted offense and it should be punished.However,there are exceptions.Japanese scholars think that the impossible attempt and the impossible crime are just different in word,actually they are the same.In Germany,the circumstances that impossible crime are punished according to the law,so there is no need to distinguish between the impossible attempt.In Korea's theoretical community,the impossible attempt and the impossible crime are different,the former is not dangerous,and not punishable;the latter is dangerous and an attempted crime is established.In terms of the types of the impossible crime,although the standards for division are the same,different titles have also appeared.Some countries are divided into impossible crime of objects and impossible crime of methods.Some people think that impossible crime of methods is not suitable and they should be called impossible crime of measures.In our country's theoretical community,the impossible crime of object has been recognized by scholars,but for another type,using impossible crime of tools.With the development of theory,some scholars have proposed that the use of impossible crime of target to replace impossible crime of object.The differences in these titles are related to different legal backgrounds in different countries.We must clarify the meanings represented by legal terms and compare them with the legal terms in China in order to draw rigorous conclusions.Since the word object in the theory of foreign criminal law corresponds to the criminal target of our country,it is more suitable for China that the impossible crime of target.The terms “method” and “measure” are not as appropriate as the tools are expressed,so the impossible crime of tools should be used.Some countries have stipulated in the legislation on impossible crime.There are three main situations.One is that they cannot be punished according to the attempted crime;the other is impossible crime can reduce or eliminate punishment;and third,impossible crime cannot be punished.Our country's impossible crime theory was first introduced from Soviet Russia.Soviet-Russian scholars believe that behaviors show actual dangers.Even if they fail to achieve their goals,they should be punished.Only superstitious criminals are not punished.After the theory was studied by Chinese scholars,it gradually developed into a general theory in China.With the in-depth study of the theory of foreign criminal law,our country's criminal law community has also appeared in different voices.The theory of general theory was criticized.Some scholars criticize the general theory,which violated the basic position of our country's criminal law and did not conform to criminal law objectivism.Chinese scholars have also put forward their own different theories,of which the specifically danger theory and the objectively danger theory have a greater impact.The two doctrines start from different perspectives and make judgments based on different facts.Different countries in the world have different legal development processes,different concepts,and there is a big difference in understanding issues.Although the impossible crime originated in Germany,it was initially considered not to be punishable,but later German law clearly stipulated that the impossible crime was punished.Japan has no legal provisions,but theorists generally believe that it cannot be punished.From a global point of view,the civil law countries are mainly opposed to the objective and the subjective.They judge the danger from the meaning of the behavior and the actor,and there are various specific theories within it.The theory of the common law legal family is based on the traditional theoretical value of crime prevention.It is more inclined to punish criminal intentions,and is concerned with the danger of the actor's meaning.The common law legal family divides impossible crime into factual impossibility and legal impossibility.The former cannot be used as defense for attempted offender,while the latter can.In the common law legal family,factual impossibility and legal impossibility can be a distinction between crime and non-crime,then the boundaries between the two must be clear,but in practice it is difficult to determine the specific cases.In the case of law,there have also been different judgments.There is still controversy on this issue.Our country has no legislation for the issue of impossible crimes,so at present,it is only a theoretical study.The views of the general comment have been questioned by many scholars.There is controversy among scholars as to which viewpoint we should choose.From the analysis of the basic position of criminal law,we should adhere to the standpoint of objectivism.This is the requirement of the times and also the position established by our country's criminal law.From the perspective of non-valued behavior and non-valued consequence,dualistic non-value behavior is more reasonable.How to judge the danger is very important in the issue of impossible crime,and it is still unclear whether the attempted crime is a dangerous offense.The author believes that the danger is not the same concept in attempted crimes and dangerous offense.From the legal development of our country,the specifically danger is more appropriate.Specifically danger is consistent with the purpose of our country's criminal law.It can not only protect the legal benefits,but also embody the principle of necessity in criminal law.In judicial practice,there are also some cases of impossible crime.In the trial process,although the judge will determine that the act is impossible crime,it directly punishes the attempted offender,which is the same attitude as the general theory of our country.It is undeniable that there is no legal norm about impossible crime,and theoretical discussion does not solve practical problems.We should clearly stipulate the problems of impossible crime,and add provisions in the criminal law so that laws can be followed in judicial activities to avoid confusion in the application of the law.Theoretical research is based on legal provisions.Through theoretical analysis of legislative analysis,we must eventually return to legislation and improve legislation.For the theory of impossible crime,not all should be punished.Those who are dangerous should not be punished,and those who are not dangerous should not be punished.This should be stipulated in the legislation to better guide practice and avoid confusion when the law is applied.I think that impossible crime should be stipulated in Article 23 of the Criminal Law,and it is stipulated with the attempted crime.