Research On The Problem Of Impossible Attempt

Impossible attempt is a research subject both with historic and modernity. It has beenclosely watched by various criminal law circles from all countries since Feuerbach putforward it in19thcentury. German, belonging to common law system, has came up with manytheories, but compromised between the subjectivism and objectivism in the mainstreamtheory as well as in legislation. There is no explicit provision about the impossible attempt inJapan’s criminal code, however, the theory of criminal law and judicial practice generallyaccept the concept of impossible attempt and also consider it has no punishment. In thejudging standard of danger, the specific danger theory is generally considered. In England,belonging to Anglo-American legal system, the subjectivism theory is adopted in legislationand in the theory of criminal law of the impossible attempt problem, due to it focus onprevention function of punishment. The situation is similar in America. The traditionaltheories of criminal law in China believe that impossible attempt is a kind of attempted crimewhich has real danger and is a punishable behavior. In judging the danger, the abstract dangertheory is adopted. In recent years, some scholars put forward a theory of specific danger. Atthe same time, the objective theory of attempted crime has become a powerful theory, butthere are still differences between worthless theory of behavior and worthless theory of resultinternally.As the danger in attempted crime is concerned, there are three basic cognitions: thepossibility of behavior causing result, the possibility of behavior with human’s subjectivefactor causing result and the possibility between intent and harm to society. From theperspective of school, the danger of attempted crime once had disputes between danger ofbehavior and danger of actor. The danger of actor refers to danger of the actor’s characteristicor the own danger, which provides punishment evidence to all crimes including the attemptedcrime. As a result, there is difficult to distinguish the attempted to commit from accomplishedguilty. The danger of behavior, which provides the theoretical basis for punishing all danger actors including attempted crime, can be divided into danger as behavior itself and danger asresult according to behavior including result or not. The danger as behavior itself is not onlyhard to distinguish the attempted crime from preparatory crime, but also will expand thepunishment of attempted crime invisibly. Therefore, sticking to the danger of results would bemore appropriate.The impossible attempt means the behavior performed by the actor can’t be crime inform, but it is punished by criminal law for its danger to society. Constituting impossibleattempt requires two elements: one is the actor has already started the crime; the other is thecrime can’t be succeeded, among which the criminal purpose should be regarded as thejudging standard for “Impossible Succeed”. In all countries, the punishment principles ofimpossible attempt mainly include unabated principle, extenuation principle withoutexception and extenuation principle with exception. There is not clear rule of punishmentprinciple about impossible attempt in China’s criminal Code. In theory, the punishmentprinciple should be established according to the practical situation that the impossible attemptis less than general attempt in harm to society. In addition, the legislation mode of combiningwith general rule and specific rule should be adopted to stipulate the punishment principle ofthe impossible attempt.The theory of criminal law generally thinks that impossible attempt includes impossibleattempt in object, impossible attempt in method and impossible attempt in subject. Therefore,the theory of impossible attempt should developed specifically in the above three kinds ofimpossible attempt. In the impossible attempt in object, if the target of crime does not exist, itis absolutely impossible attempt which has no crime. If there is a target of crime without thespecific scope of the act, the impossible attempt is convicted. For the impossible attempt inmethod, if the method which the actor is intending to perform is impossible to lead the result,it belongs to absolutely impossible attempt. On the country, if the intending method will leadthe result, but the practical method does not lead the result for the actor’s mistake, it belongsto the impossible attempt. The impossible attempt in subject is a problem that connected withthe real identity of crime. The real identity crime belongs to the main elements to component. Therefore, the actor, who is lack of the special identity, can not be the subject of the crimewith this special identity anyway, so the impossible attempt can’t be convicted.