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Can not be guilty of attempted Controversy_345

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Can not be guilty of attempted Controversy_345

Can not be guilty of attempted Controversy

     Summary In this paper, the objective attempt to address the risk that an objective analysis, criticism, pointing out that the concept of risk is not equivalent to the concept of real possibility. Therefore not guilty and not guilty of attempted distinction is whether the risk, rather than whether a real possibility. May be attempted only as a realistic possibility of not guilty and guilty of attempted division of the standard. As an explicit attempt to commit that could not be attempted and can not be guilty of committing the relationship between the.

     Abstract Judicial Practice Study title

     First, our country can not attempt to commit Theory and Germany and Japan can not be guilty of the Analects (Note:

    In the German-Japanese criminal law theory, and can not attempted that is not guilty of committing, do not have to punish, thereby committing the attempted and can be distinguished from punishment. In this article China will not

    be able to commit attempted to make a strict distinction between committed and can not attempted as an attempt to commit the type of a kind, with Strafbarkeit; not refer only to non-punishment can not be guilty of committing.)

     In China's traditional theory does not exist "non-

    punishment can not be guilty of" concept, there is not only guilty of attempted or not attempted guilty concept. Can not be guilty of attempted criminal law theory, in our attempt to commit only as a type of existence, and has Strafbarkeit. Such

    as traditional theory suggests that the implementation of behavior, whether for criminal consummated as the standard, can be classified as an attempted crime can be committed and can not be guilty of attempted attempted. Can be guilty of

    attempted criminal act is likely to be consummated there is a

    practical, but because of reasons other than the perpetrator will not meet the completion of the situation; not attempted because of crime committed is that people know the facts about the crime, the error Er Shi criminal acts can not be achieved completion of the case. Which again can not be guilty of attempted can not be classified as a tool or means of committing can not be guilty of attempted and the object can not be guilty of attempted attempted. (Note: see Gao editor:

    "Principles of Criminal Law (vol. II)," the Chinese People's University Press, 1993, p. 327.) Moreover, the traditional theory that can not be guilty of attempted since it is attempted to commit a kind of punishment type, of course,

    should have a complete subjective and objective criminal responsibility under. For example, the tool can not be guilty of attempted cases, the perpetrator of the crime has obvious subjective intent and has been translated into an objective outside the act that was outside into the objective acts, while the error due to the perpetrator does not have a complete understanding of crime and to achieve an accomplished state real possibility, but such conduct is related to the perpetrator of the crime, and will closely linked to the

    meaning and subject to domination. Thus, according to the principle of the unity of subjective and objective, such acts constitute a crime are the subjective and objective elements, with serious social harm. In the object can not be guilty of

    attempted cases, the perpetrator's behavior, while not directly act on the criminal object, thereby causing real damage to the object of crime results, but the behavior of people under the domination of the criminal intention of subjective and objective criminal acts gave an objective reality of crime object causing real danger or threat. Therefore not guilty of attempted and attempted to commit the same sins all at the same time, subjective and objective criminal acts constitute a crime, the most basic of these two

    factors. "Both the complete and unified decision that can not guilty of attempted also has a considerable degree of social harm. That the unity of objective and subjective elements and their behavior determined by the social harm that they can not

    constitute a crime and punish those guilty of attempted acts of persons the scientific basis for criminal responsibility. " (Note: see Gao editor: "Principles of Criminal Law (vol. II)," the Chinese People's University Press, 1993, p. 330.)

     The "no penalty can not be guilty of" theory mainly in

    Germany and Japan-based civil law to criminal law theory, its first proposed by the German scholar Feuerbach. Feuerbach based on "rights are infringed upon that" the position that the attempt to commit itself does not contain a direct infringement of rights, its only real rights are infringed upon probable cause (Wahr ScheinlicheUrsache), that is attempted is based on a realistic rights are infringed upon risk. (Note: [date] Muneoka Shiro: "objective theory of the

    basic structure failed," Japan written Church Press, 1990 edition, p. 53.) This kind of "risk" in Feuerbach's view is to produce an accomplished crime The "possibility." On the relationship between an accomplished and attempted, Feuerbach

    pointed out: the completion of an attempted self-contained

    greater the likelihood of completion of the crime, the penalty heavier. - Completion of the potential determines the degree of punishment that can be attempted, behavior more close to the completion of the reality of crime, the higher the likelihood of completion of the. As a result, attempted closer consummated, in the attempted and consummated that exist between, for real results led to the unlawful act necessary to the intermediary (Zwischenhandlung) that can be the higher

    degree of punishment. (Note: [date] Muneoka Shiro: "objective theory of the basic structure failed," Japan written Church Press, 1990 edition, p. 54.) Obviously, the objective Feuerbach attempted theory "violates the rights of the dangers

    of "and" completion of the possibility of crime, "it is the same concept. Moreover, this "possibility" of judgments can only be used in Feuerbach's view of "objective laws of nature" to carry out, which is Feuerbach's naturalistic theory of

    criminal law a necessary attribute. Therefore, based on the natural law of cause and effect is absolutely impossible for completion of the criminal acts of an accomplished, it will be excluded as a punishment can not be guilty of the attempted committed outside the scope. In this way, according to the objective Feuerbach attempted theory, can not be guilty of committing attempted not only to independent outside, but the difference is essentially "no fine" and "may be fined," the difference.

     If we say that the old objectivism of early German criminal law theory because of the thirties of this century, "illegal personality theory" the formation and development of a gradual decline, resulting in subjective theory Chanthon in a dangerous position, then said, almost completely adhering to

    the German Criminal Law in Japan theory of criminal law but on the contrary, strictly followed in order to protect the legal interests at the core of the new objectivism theory of criminal law. The new emphasis on acts of criminal law theory

    of objectivism external, objective facts, that "the act itself," it has a practical significance. Thus, even with the appearance of seemingly "to proceed to implement" behavior, as long as its behavior in nature does not have a "place results"

    of risk, it should be understood as not guilty. In other words, attempted violation of environmental protection, the result of a result of a (legal interests against) the risk, (Note: In Japan objectivist theory of criminal law, the holders of the form of an objective, said of the opinion that the punishment committed attempted is produced under conditions that constitute the results of the real possibility of its representatives who are: Otsuka Ren, Fukuda level, Otani real and so on; while the real objective that holders of

    the opinion that an attempt is guilty of the punishment under the law benefits against the risk of the specific nature of their representatives who are: Saeki Chihiro, Ryuichi Hirano, former British and so on Tian Ya. See [days] Otani real:

    "Criminal Law lecture remarks" (fourth edition), Japan written Church Press, 1996, p. 373 ff.), so has the law, thereby may be fined; not guilty of the original does not exist because of the kinds of risk, it is not considered to have unlawful sex,

    which can not be punished. (Note: [date] Kawabata, Bo: "Strafrecht Allgemeiner Teil" (second edition), Japan written Church Press, 1997, p. 345.) On the "dangerous", the Japanese objectivism criminal law theory opposed to abstract, assumed that the risk of punishment as a basis for advocacy of the risk of punishment must be specific, objective and real. (Note: see Hai-Dong Li: "social harm and danger: China,

    Germany, Japan, a comparison of criminal law," Chen Xingliang editor: "Criminal Law Review" (Volume IV), China University of

    Political Science Press, 1999, p. 5 page.) In particular, in how to judge "may be fined guilty of attempted" and "non-

    punishment can not be guilty of" the difference between the standard - "dangerous", the total dominance of Japan's

    criminal law theory of "objective danger that" has even more objective and Marxist theory of criminal law to play vividly. "Objective risk to say" that the attempt to commit a penalty based on the result of a (legal interests against) the risk is

    only an objective fact, and should therefore be identified, including the fact that after all the objective facts,

    including, based on the law of cause and effect based on scientific whether to risk judgments. (Note: see Hai-Dong Li:

    "social harm and danger: China, Germany, Japan, a comparison of criminal law," Chen Xingliang editor: "Criminal Law Review" (Volume IV), China University of Political Science Press, 1999, 31 page.) Thus, based on scientific laws of cause and effect behavior of their own physical properties of its

    constituent elements look unlikely to produce results, the act is the lack of punishment as an attempt to commit the basis, but should be recognized as non-punishment can not be

    committed.

     All in all, this dangerous theory on the "objective risk"

    at the Chinese scholars who are also no shortage of ideas. For example, Professor Zhang Mingkai believes that attempted to implement the objective theory, subjective only when the perpetrator has a sin, its objective to implement the act with

    the risk of infringement of legal interests can be identified as an attempted crime; act with subjective mens rea, its objective behavior does not infringe the legal rights and interests of any risk, it should be recognized as non-

    punishment can not be committed. As to whether the conduct was objectively dangerous infringement of legal interests, it should be there in order to conduct all the objective facts, based on the position of standing behavior, based on objective rules to determine the cause and effect. (Note: Zhang Mingkai:

    "The basic position of the Penal Code", China Legal Press, 2002 edition, p. 247.) In accordance with this objective danger that in our country in order to attempt to address and be sure that may be fine in nature, mistaken as a health-care

    supplies poison to kill other people or misuse of the body as a living example of the implementation of the killings would be for "the perpetrator of the implementation of the" acts "against the law in itself does not have the benefit of any

    risk of causing the crime is not consummated when the crime took place results" , (Note: Zhang Mingkai: "The basic position of the Penal Code", China Legal Press, 2002 edition, p. 243.) denied committing the attempted establishment should be recognized as non-offenders can not be punished. Professor Zhang Mingkai is precisely the danger that based on this objective should not attempt to commit our country critical theory, and that our country can not attempt to commit an abstract theory, in fact take the risk that not only failed to

    adhere to the principle of the unity of subjective and

    objective led to the subjective incrimination, but also to expand the scope of criminal penalties for suspects. (Note: See Zhang Mingkai: "The basic position of the Penal Code",

    China Legal Press, 2002 edition, p. 243 ff.) Adoption of the Comprehensive's profile is not difficult to see things that can not be understood as an attempt to commit penalties, one of the attempted commit types Ye Hao, or things that can not commit penalties can not be interpreted as non-offenders can

    be fined and thus excluded from the scope of the attempted Yehao, the key lies in how to understand the attempt to commit the "dangerous nature" concept. Reposted elsewhere in the paper for free download http://

     Second, the nature of the attempted commit the "danger" concept

     Of national criminal legislation on the current point of view, are all the crime as an attempt to set down the basic system, the modern criminal law theory, more generally, that

    the crime can be punished with an attempted sexual. However, the nature surrounding the attempted commit, attempt to commit the punishment according to the criminal justice theory, the situation has not been unified, subjective and objective

    attempt failed on the theory has been debated.

     Today's subjectivist theory of criminal law in the attempt on the era of the common law of Germany in succession to the subjective theory of the representatives attempted Heng (Henke), Paul Ruden (Luden) and other theories, (Note: The

    German scholar hongg in critical Felba Kazakhstan attempted theory advocated by the objective of "the public can be punished nature" constitutes an objective, the proposed "may be fined a maximum benchmark is that of the anti-French

    sentiment" of this basic idea, and under the guidance of this idea actors to explore the subjective meaning of sex can be punished under. Therefore, Heng that the attempt is also guilty of nothing more than the nature of the perpetrator's intention itself "anti-law" of the content, this time, only

    the external behavior is a violation of France recognized the meaning of information. attempt to commit the punishment does not require the actual implementation of the act with the intention of results between (potential) causality. See [days] Muneoka Shiro: "objective theory of the basic structure failed", Japanese written Church Press, June 1990 edition, 59.

    Roudon are actively involved in advocating the theory of Heng equally Feuerbach attempted to strictly distinguish between

    punishment and not punishment can not be guilty of an attempt on the objective was criticized. its pointed out: all of the attempted commit purpose of the act can only exist in the non-

    suitability, so, in order to attempt to carry out an objective

    theory of the case, will attempt to negate the concept could be fined. objectively without danger on this point, since " can not be "a means of not guilty and" not adequate "means to attempt to commit no different, then there is no meaningful

    distinction between the two. - even if the actors chosen for

    the purpose of the results of the non-ideal behavior, because

    their behavior has demonstrated behavior wishing to use the appropriate means to the purpose intended, it is also a dangerous act and should be punished. to negate the non-

    punishment of not guilty. [days] Muneoka Shiro: "objective theory of the basic structure failed," Japan written Church Press 1990 edition, p. 60.) Similarly, in the meaning of the risk of the perpetrator, the perpetrator repeatedly the risk

    of committing criminal acts committed in an attempt to seek penalties based. The modern theory of subjective attempt that, even did not produce results, but in certain behavior able to demonstrate the meaning of crime, then it can be clearly the

    existence of crime. Since the discovery of the meaning of crime because of their criminal acts of meaning in the sign tables of the people the dangers of anti-social personality,

    so the meaning of the Law against the hostile, in order to

    protect the legal order, particularly against acts of anti-

    social character of the risk of people in order to defend society, and be punished. (Note: The [Japanese] Nomura Minoru: "Strafrecht Allgemeiner Teil," Japan written Church Press, 1990 edition, p. 319.) However, commentators have attempted subjective is not suggesting that mean the risk of criminal punishment, but rather in its meaning embodied in certain objective behavior, began to be punished. Therefore, the objective of the act attempted subjective theory of human

    behavior than with the levy table meaning the meaning of risk. Like this, even if the subjective theory of attempted "objective of the act" as an issue, which is not an objective of the criminal acts of their own legal interests protected by

    the reality of the danger, but simply is a subjective abstraction of the danger. This means the perpetrator attempted to explore the risk of penalties for committing attempted according to the subjective theory of criminal law

    theory is subjective, of course requirements. As we all know, commentators subjectivism criminal punishment on the education or social defense concepts of the theory of punishment, emphasizing the social penalties for defensive purpose of education, the perpetrator, to act as a kind of society and

    reverted to the community, eliminate the harm to society. (Note: The [Japanese] Otsuka Ren: "A Summary of the Criminal Code (remarks)", Japan Fiji Court Press, 1975 edition, p. 41.) Thus, subjectivism, criminal theorists focus on the study of

    crime in implementation of the criminal acts of the perpetrators behind the anti-social personality. And pointed

    out that: as the object of criminal penalties for acts of its real significance lies in showing the risk of prisoners (temibilita: Pericolosita) and social risk (etatdangereux: Gemeingefahrlichkeit) - the level of modern science shows that only through an external, objective behavior before able to recognize the inner, subjective reality. Therefore, the behavior of people internal, psychological fact that the

    perpetrators of the danger of sexuality, the table on external behavior, the subjects can be right in order to penalties. The perpetrator only has the awareness of the risk behavior of people the means to meaning. (Note: The [Japanese] Otsuka Ren:

    "A Summary of the Criminal Code (remarks)", Japan Fiji Court Press, 1975 edition, p. 40.) Thereby negating the criminal act itself the objective and realistic significance.

     Attempted on the current theory of an objective point of

    view, its main objective from the Feuerbach attempted emphasize behavioral theory inherits the objective surface and the real face of the position that if consummated essence of illegality committed by France against the benefits, then the attempted guilty of unlawful sexual nature lies in pointing to legal interests against the "dangerous." And the "dangerous" is the act of infringement of legal interests with the "objective risk" or the "producing the results of the objective conditions that constitute the risk." (Note:

    [Japanese] Nakayama Kenichi: "Oral Strafrecht Allgemeiner Teil," Japan written Church Press, 1983, p. 342.) Thus, a modern and objective attempt to put the act on the real, objective risk as a punishment committed attempted basis. However, how to understand as an attempt to commit penalties based on "objective risk", in an objective attempt appeared on the internal differences of opinion. (Note: see Zhang Mingkai: "The basic position of the Penal Code", China Legal Press,

    2002 edition, p. 199 ff.) Their argument is such a danger is "conduct its own risk (property)" or "as a result of the Dangerous (state). " In other words, the penalty is based on "conduct Properties" or "result state" is the essence of unlawful sexual behavior or the results of worthless

    worthless. Currently, in Japan the status of theoretical circles Chanthon that acts on worthless Although in principle also admitted attempted guilty under the penalty is that "achievement of the crime constitute the elements of real danger" or "legal interests against the danger of an objective", but advocates can not be divorced from the perpetrator's subjective attempt to address the risk can not be ignored that the prisoner's criminal plan to determine the risk of subjective elements. (Note: [Japanese] Kenichi

    Nakayama: "Strafrecht Allgemeiner Teil," Japan written Church Press, 1982 edition, p. 402.) So that the dangerous behavior of no value judgments on the structure on the failure to reject "the realization of mens rea" This proposition. The

    kinds of views of scholars who are mainly German scholar Weierzier, Japanese scholars Otsuka-jen, Fukuda equality. The

    results of the scholars hold no value on the referee from the criminal norms are norms of this basic position, that the illegality of the judgments is an objective evaluation of the objective facts. Therefore, to determine whether acts of the results of the risk occurring, it can only be based on objective facts, but without regard to the subjective content of the perpetrator. Attempt to commit a penalty based on the

    "dangerous" can only be "as a result of the danger" is the act against the legal interests of the specific risks. For example, the Japanese scholar, Professor Sone Takehiko that "punishment is based on the risk of committing attempted as a

    specific penalty for the right to launch the premise that only when the object of protection in specific real danger. The danger is referred to here as the behavior of the outcome of the danger, is the result of the elements. "(Note: [date] Sone

    Takehiko:" the implementation of the Criminal Code, dangerous, wrong, "Japanese written Church Press, 1991, p. 128 pages.) is no doubt, in accordance with the results of no value on the understanding of those who attempted Potential Damage committed is concrete. From the behavior of this surface and the objective reality is an objective attempt to grasp the concept of risk on the Marxist theory of criminal law is also an objective of course, a mandatory attribute. Objectivist theory of criminal law in order to the free will of the

    abstract "rational man" as a precondition to the free will of the external, the reality of the act and its consequences for the focus to determine offense (Note: Kam Yu Pei, Peng: "foreign criminal law," Peking University Press, 1984 edition,

    p. 19.) and stressed that sentencing is based on the reality of the behavior of prisoners. (Note: The [Japanese] Otsuka Ren: "A Summary of the Criminal Code (remarks)", Japan Fiji Court Press, 1975 edition, p. 40.) Therefore, only the behavior of actual or threatened infringement of legal interests protected by criminal law, the in order to be a crime to punish. As a Japanese scholar Hirano Professor Long Yi pointed out: Law is to protect the interests of personal life exists, and therefore occurred only when beneficial to

    the law "against" or "threat", the method is possible to intervene. The intervention is aimed at no recurrence of such violation or threat. Therefore, the legal interests of the violation or threat of such an objective element is the

    illegal nature of substance. (Note: Li Haidong editor: "The Japanese Criminal Law, who (I)", China Law Press, Japan, written in 1995, Hall co-published edition, p. 276.)

     Of China's traditional theory suggests that the reason why a particular act constitutes a crime and should be punished by the penalties, first of all because of the acts to be crimes of China's Criminal Law Article XIII of the crime revealed by the concept of essential features - social harm.

    In the case of the attempted commit, acts of people who,

    though not complete a crime or violation of social relations are not directly caused actual harm, but the perpetrator has, or has been with the subjective serious harm to China's criminal law to protect the important relationship between

    socialist society and the criminal intent, objective to implement a serious threat to the implementation of social relations and behavior so that social relations are at risk, therefore, subjective and objective factors, integrated with a considerable degree of social harm, so as to China's criminal law explicitly sanctions. (Note: see Gao editor: "Principles of Criminal Law (vol. II)," the Chinese People's University Press, 1993 edition, p. 284 below; Ke-Chang Ma editor: "The

    General Theory of Crime", Wuhan University Press, 2000

    edition, p. 20 below.) From this perspective, our traditional criminal law theory that the substance of attempted criminally responsible for committing acts in accordance to the social relations is a direct threat that the behavior of social

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