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Can not be guilty of attempted Controversy_345

By Jack Hunter,2014-10-30 11:47
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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",