On Impossible Attempt

In recent years,criminal law scholars have paid more and more attention to the study of attempted crime,but the analysis of the specific forms of attempted crime is not comprehensive and in-depth.In particular,there is a lack of unified understanding on the issue of unaccomplished attempt.This leads to some phenomena of different judgments in the same case in judicial practice,or the result of the judgment of the case is beyond the acceptable range of the general public.In view of these problems,the author believes that it is necessary to study the unaccomplished crime.Especially in how to identify incapable and incapable of attempted punishment basis.This paper mainly studies the problem of attempted incapacity through the following parts.The first part Because impossibility is a common topic,it will become a question why we should discuss it again.In the first chapter,the author lists the definition of impossibility(attempted impossibility)at home and abroad,as well as the penalty provisions.At the same time,the difficulties that may be encountered in discussing this problem are put forward,and the difficulties should be better analyzed and defined from several aspects.The second part the basic theory and related concepts of unaccomplished attempt.In this part,the author lists and analyses the related concepts.Starting from the concept of impossibility,this paper redefines the definition of attempted impossibility.Firstly,this paper compares the definition of impossible attempt in China with that in Japan.It is found that although both countries use the same word at the same time: not to commit(not to attempt).But they have very different meanings.The theory of impossibility(attempted impossibility)in China does not include superstitious criminals,but Japan includes superstitious criminals.And in Japan,many of the acts constituting attempt may be considered impossible in our country.This paper uses the concepts of attempted accomplice and attempted impossibility.Failure to commit an attempt is not a crime,so it should not be punished.Dangerousness is the key to distinguish the two.This paper also analyses and discusses what criteria should be used to judge the dangerousness.The third part The analysis of the attempt of impossibility,that is,the attempt of impossibility from the perspective of legislation.In this part,through comparative analysis,the author analyses the different legislative models of attempted impossibility in foreign countries.From the current provisions of the criminal law,we can see that the provisions of the criminal law of our country on the unaccomplished attempt are still very general,and there is no clear provision in the legislation,which has to be said to be a pity.Because from the cases involved in the issue of unaccomplished crime,they are all related to the discussion of important issues such as crime and non-crime,punishment and nonpunishment.The blank of legislation weakens the protection function of criminal law.The forth part Identification of the scope of incapability of attempt.The author believes that the impossibility of attempted crime does not constitute a crime and does not need to be punished.It defines the criterion of impossibility(attempted impossibility): danger.This article separately from one,judging the basis of danger should be the code of conduct or criminal law norms.2.Whether it is necessary to abstract certain facts when judging specific acts.Thirds,the time criterion for judging behavior should be ex post facto or ex ante.Fourth,judging whether there is danger or not should be based on the actor's knowledge or scientific causal law.In addition,the types and dangers of the attempt of instrumental incapability,the attempt of object incapability and the attempt of subject incapability are analyzed and discussed.