The Study Of Non-accomplishment Crime

Non-accomplishment crime is an objective phenomenon in the theory of criminal law and the understanding of its basic connotation is generally consistent in the world, that is because the non-accomplishment crime which produced by the tools and object can’t be attributed to the case of attempt. However, on the basis of whether the behaviour could be punished or not, the scholars make the further division to it, and the division directly brought confusion, so scholars must to clarify the concepts such as non-accomplishment attempted, impossible crime, can be punished behaviour, can’t be punished behaviour. What is the meaning of these concepts? What is the relationship with the non-accomplishment crime? What is the standard between the punished behaviour and unpunished behaviour? And if we want to answer these problems, we must clarify whether the behaviour could be punished or not. In the theory of criminal law, there have been two different views about how to judge whether the non-accomplishment crime is a crime or not. One kind of viewpoint thinks,According to whether the behavior is able to produce real harm danger or has the objective possibility to finish the accomplishment of a crime to judge objectively the status and Another idea suggests that,According to the contradiction between the behavior of the facts of the crime subjective cognition and objective fact existence is not resistance spirit which was guilty of the establishment of the behavior meaning, to make to Italy under the domination of implements the behavior to recognize for the attempted crime to judge. The above two viewpoints directly reflects that the issue of non-accomplishment has a dispute in the theory of criminal law, this is a dispute between subjectivism and objectivism. The problem of non-accomplishment crime of objective and subjective struggle reflected is the opposition about the basic stance of the criminal law, especially the opposition between the crime on the objectivism and subjectivism. In recent years, the problem of non-accomplishment crime become the focus of attention of various countries criminal law theory, the reason is that the problem is not only related the essence of crime, criminal responsibility, the constitution of crime and crime according to the method, but also reflects the degree of modernization of a country under the rule of law of value orientation of legislation and research level of impossibility. According to the above two kind of different position, the first problem of the circle of the criminal law must be considered about the non-accomplishment crime is how to calm the subjective and objective of struggle, so as to make sure of a truly objective standard for punishment cannot. In other words, if the non-accomplishment crime is determined to constitute a attempted crime, then that be punished under which kind of circumstances? Which kind of standard of judgment can be sent? How to judge the relationship between the attempted crime and attempted crime about the non-accomplishment crime? And whether they have the same reason to be punished? For these problems, the objectivism based on the behaviour which cann’t results in a dangerous state violates the law profit or never against the interests, so Claims it does not constitute a crime. Reflected in the criminal legislation is that the non-accomplishment crime cann’t constitute a crime. For example, "criminal law of Japan to set draft" 25 st, "the Italy penal code" the second paragraph about 49 st, "the Portuguese penal code" the third paragraph about 23 st and third paragraph of article 15 st in Austria have made such regulations. The Subjectivism based on the character of human behavior and personal danger, especially the behaviour penalty placed on anti method subjective with objective meaning and the meaning on the sign table. The idea that, the non-accomplishment crime and attempted crime both have the same subjective malignant, so they are both is caused by the behavior of causes beyond volition of the attempted crime. Reflected in the criminal legislation, the provisions of the non-accomplishment crime and ordinary attempted crime should be committed the same punishment, or can reduce and even exempt from punishment. For example, "the German criminal law" the third paragraph of article23 st, "South Korea" 27 st, "the Republic of Singapore penal code" 511 st and "the Romania penal code" the second sections about 20 st are made similar provisions. The arguments between subjective and objective, and no matter it occurred in the independently or mutual fusion, and its essence is how judgment the danger about the non-accomplishment crime. The theory of criminal law will not be able to make whether can punish problems directly and act with the "dangerous" closely linked, on the "dangerous" theory such as "all flowers bloom together." as the first to emerge, and the judgment of danger as a solution to the problem of impossibility way.The provisions of the criminal legislation of our country doesn’t contain the non-accomplishment crime, And in accordance with the provisions of article 23 st of the criminal law of our country, the theory of criminal law in China looked non-accomplishment crime which produced by the tools and object can’t be attributed to the case of attempt, as the crime that will be punished. Therefore, according to China’s criminal legislation and the criminal law theory, in our country, besides the superstitious offense don’t have the punishment, the others would be looked as crime, but in the punishment be given a lesser punishment or a mitigated punishment. However, in the 1990 s, in the face of foreign countries about the impossibility of theory research is growing, especially scholars of criminal law in Germany and Japan "fresh blood" continue to enter our country criminal law theory, China’s criminal law scholars began to make the theory of criminal law for its own reflection, that make the theory research becomes hotter.At present the research on non-accomplishment crime in china, also limited to the judgment standard of "risk",some scholars have advocated the abstract dangerous, some scholars have argued that specific risk,and also some scholars thought that there is a risk of objective danger,but this danger must be produced based on the subjective and objective under a unified position. Facing the situation of research of our country, how can we deal with the problem of non-accomplishment crime? Whether to abandon the existing criminal law and criminal law theory say "start", or correct the existing criminal law theory and has the rationality of criminal law theory "line", or "right" for a reasonable interpretation of the current criminal legislation in China, etc., these problems become a difficult problem to our country criminal law theorists. In this paper, thronging the analysis of the doctrine of objective attempt and subjective attempted, according to the subjective and objective of the debate on the problem of non-accomplishment crime, sort out the focus of controversy, and according to the focus of controversy and find a way to solve the problem of non-accomplishment crime. In this paper, besides introduction and conclusion, the article the main structure is divided into four parts, namely the legislation and theory of non-accomplishment crime, the focus and controversial substance of non-accomplishment crime, and the position and relevant concepts clear under complete objectivism in our country about the theory of non-accomplishment crime. The four part layer by layer, in order to put forward the question, the analysis question and idea to solve the problem, in order to show the basic viewpoints of the non-accomplishment crime.The first part of the theory mading clears the meaning of “non-accomplishment crime”. As a result of foreign countries on the use of “non-accomplishment crime”concepts are different, so making clear the concept can helps us to determine the point and the object of the research scope of this article, we study range to avoid mentioned in his theory works with other criminal related concepts about non-accomplishment crime to produce confusion, and biased understanding of the article. Secondly, this part shows that taking “non-accomplishment crime”as the object of study purpose or motive. The aim of this research from two aspects: one of it is to solve the arguments between the subjective and objective and provide reference and guidance for a reference for the judicial practice; the other of it is to explain the provisions of article 23 st reasonably. In the scope of the study, this paper mainly involves to the German and Japanese theory, because if we want to solve the problem about the non-accomplishment crime,we must be make the controversial theory source of criminal law of Germany and Japan, analyzes the insufficiency and the reference.At the same time, because of the problem of impossibility and attempted crime problems are closely related, so the study on the impossibility can’t do without involving the related theory of attempted crime, but scope only capture and impossible criminal attempt some closely related to discuss. At the same time, the problem of non-accomplishment crime which relates to the theory of criminal law in all aspects, but the scope of the study about non-accomplishment crime can’t refer to the various aspects, so the article focus on the " non-accomplishment crime and its punishment", its refer to the main characteristics and the penalty basis finally, a reasonable interpretation of China’s criminal law 23 st. In this article, through comparative study, analysis of the data and historical study attempted to redefine punishment according to its characteristics, and further elaborated the basis of crime punishment power in our country. At the last of the article, the research framework and the innovation of the theory outlined, logical system clarifies the research framework and Research on the impossibility of theory innovation, illustrate the theoretical value of this creation and great significance to the judicial practice.The second chapter on the basis of existing outside countries criminal law theory data, focusing on the typical continental law system and Anglo-American law system countries and our country legislation and theory research. The typical continental law system country, the present situation of legislation and theoretical research mainly revolves around Germany and Japan. The Research of the civil law, begin from attempted to attempt and subjectivity theory can’t commit the basic propensity, on the one hand, under the doctrine of objective attempt cannot commit the basic idea of combing and analysis; On the other hand under the doctrine of subjective attempt to comb and analyze the basic idea of "cannot commit, pointed out that the civil law countries in around the research which violates to the not highlights from the subjective and objective attempt, blending of can’t make the study of the" risk ", and will determine the risk cannot commit any as a way to solve the problem of cannot commit. Based on objective attempt and doctrine of subjective attempt can’t make basic idea of carding and analysis, reveals that both the doctrine of subjective attempt under the position and objective attempt under the doctrine, all cannot cannot commit to determine the reasonable of the standard of "risk", or didn’t clarify relations between subjective and objective, how to judge the risk of not clear standard, so the problem of being stuck in the debate of subjective and objective can’t save themselves.The typical countries of Anglo-American law system, the present situation of legislation and theoretical research focus around Britain and the United States between the two countries. Due to the legal source of the Anglo-American law system and the enacted law, including common law in Anglo-American law system mainly around the common law precedent with two aspects of legislation enacted law. In British and American criminal law, how to determine the impossibility for criminal behavior has been the British and American criminal law in determining whether this behavior should bear criminal responsibility when the focus of the debate. At the same time, due to the impossibility to explore and are embodied in the common law precedent and enacted law laws and regulations, so the problem in the theory discussion and case confirmation becomes more complicated. However the research on the problem of impossibility of the Anglo American law system didn’t jump out the theory of subjective and objective of the debate, so how to jump out the subjective and objective for the "myth", should be really solve the problem of impossibility way. Our criminal theories research status are embodied in the question and the critique to our country criminal law theory is the fundamental cause, the questioning and criticizing, theorists didn’t make a reasonable explanation to the judicial practice in China according to the provisions of article twenty-third of the criminal law on the punishment of attempted crime reason cann’t explanation reasonably. So, our country currently affected by theory of continental law system countries set off a upsurge of criticism of our country traditional criminal law theory.The third chapter mainly elaborates the focus on the controversial theory and essence about non-accomplishment crime. On the one hand, the theoretical controversy focuses on the making of the penalty, the risk of that behavior. This article first through the investigation of the origin of subjective and objective attempted theory, respectively, emphatically elaborated the subjective attempted and objective attempted under the impossibility theory according to the penalty of punishment. Secondly, the impossibility in our country is discussed according to the basic position of punishment. Based on the above question elaboration and analysis, the conclusion of this paper is, whether subjective attempted theory based on the position advocated impossible crime punishable according to, or advocated the doctrine of objective attempt based on the position of the impossibility of according to, all can’t justify the source of the risk of behavior; On the other hand, countries cannot make substantial theoretical controversy is not guilty of judging dangerous, namely how to grasp the judgment risk data, time to judge the standard of judging risk and danger. In the different means of judging, judging criteria and judging the time point of impossibility whether the risk of the conclusion has is different. Due to the subjective and objective attempt on the debate between has evolved around the danger cann’t achieve the accomplished offense behavior judgment, namely "act without value" and "Erfolgsunwert" debate between, so the judgment based on different ways, the dangerous argument boils down to: human behavior risk, risk behavior and results dangerous argument, such arguments make the penalties under the judgment becomes more and more complex. Facing this situation, how to find a real solution of impossibility according to the road becomes criminal law scholars want to transcend "divide". In the fourth chapter, the content for the impossibility in our country should be the standpoint theory. The construction is based on the standpoints and found, on the basic method of the crime to prove the facts of the crime basic difference method in China, and on this basis to the crime constitution theory as the basis, taking Marx’s epistemology of science as the guidance method, reveal the judicial organ for legal identification logic rules of crime. Only clearly identified boundaries to the basic method of crime clearly defined the crime with the non crime, in order to clearly explain the nature of crime. So this paper proposes constructing in our country under the position to complete objectivism standpoint. Only under the completely objectivist position can really explain the hazardous and dangerous source about non-accomplishment crime and told us what is really non-accomplishment crime. According to the basic connotation thoroughly objectivism, impossibility is the subjective element of crime according to the surrounding content to launch, so the punishable impossibility(impossibility) and classification of non-criminal impossibility boundaries, which also focused on subjective elements of crime. Under complete objectivism, the characteristics of non-accomplishment crime which be considered a crime must have the subjective elements, in addition to the crime must had been put into practice and unfinished. This chapter not only proposes the way to dealing with the theoretical dilemma, but also proposes a new train of thought and theory. Based on completely objectivist position the article not only finds out a scientific cognizance crime, but also reveals the essence of the crime and the reason of punishment. Completely objectivist position jumped out of the subjective and objective dispute quagmire really points out the scientific understanding of the road and clears the status of non-accomplishment crime in the theory of criminal law. Meanwhile, this article is mainly to conceptual distinctions, for confirmation of a crime when under completely objectivist position, according to the content of the crime subjective to make clear the differernce between the illusion, non-accomplishment attempted, fact lacks behavior and superstition, including significant behavior such as ignorance, in order to more clearly find out the essence and characteristics of the non-accomplishement crime which can be punished.