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Comparative Study of Attempted Not Guilty

Author: ZhouZhiDong
Tutor: ZhouChangJun
School: Shandong University
Course: Criminal Law
Keywords: Not attempted committed risk punishment basis recognizing
CLC: D914
Type: Master's thesis
Year: 2008
Downloads: 96
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Abstract

Not attempted committed, took the modern various countries criminal law theory institute accepts generally with the approval one kind of crime shape, regarding its may punish the question, not only in the various countries’ legislation stipulation is different, moreover in the various countries’ criminal law theory also has the different argument. It can be said, not attempted committed each kind of theory debate has reflected the subjectivism criminal law ideological trend and the objectivism criminal law ideological trend in this question opposition and the fusion. Not attempted committed whether has may punish the nature between, because also the subjective attempted theory and the objective attempted theory, the behavior discuss insignificantly with the result discuss the dominant position to alternate mutually insignificantly in the criminal law study theory with the fusion cause to reach the consistent consensus with difficulty. This article goal is, during the comparative analysis mainland legal system and in the British and American legal system country criminal law about the legislation stipulation and fundamental research present situation which cannot attempted violate, reconsidering and inspects in our country criminal law not to be able attempted to violate the theory the characteristic and the shortcoming, the discussion suits in solves in our country criminal law not to be able attempted to violate the question the theory admission passage, consummates the criminal law theory by the time which our country not attempted committed.Besides Japan, the Western various countries legislation stipulation and the criminal law theory had nearly all affirmed not attempted committed. has may punish the nature, even if in some national criminal law about has not been able attempted to violate explicit stipulation, but in the judicial practice procedure and the criminal law theory viewpoint also favors in recognized its may punish the nature. Although our country criminal law to has not been able attempted to violate makes the explicit stipulation, but the theorists logically coherent argument thought cannot attempted violate one kind of type which is attempted violates, should defer to attempted violates carries on the punishment. This article believed that, cannot attempted violate one kind of special type which is attempted violates, and in this foundation to its characteristic, may punish the basis and recognized has carried on the comparison test discussion.This article believed that, "not attempted committed" is refers, the author has begun to implement the criminality, but because not impossible to achieve the accomplished offense condition to the related delinquent account existence understanding wrong cause behavior, but but because of has the risk by the attempted punishment situation. Its constitution characteristic is "begins the nature", "the accomplished offense cannot the nature" and "the behavior risk".Its punishment basis includes the form the punishment basis, namely revision constitution important document compliance; Substantive punishment basis, namely serious social hazardous nature and behavior risk. Although this article thought cannot attempted violate has may punish the nature, but did not mean to "cannot violate" denial, namely this article "might punish in the attempted theory system cannot attempted violate" and "cannot be punished cannot violate" has made the discrimination. At the same time, through to subjective attempted discusses with the comparative analysis which objective attempted discusses, thought to "the risk" the concept understanding is finally decided cannot attempted violate whether can punish determining factor. Therefore, through profits from in the German date criminal law theory "the dual standard theory" and "the dual person illegal theory", has analyzed our country crime constitution system, pointed out cannot attempted violate the criminal illegal structure performance for cannot attempted behavior own illegal, its substantive content the violation object general risk which own has for the behavior. And to recognizing which could not attempted violate is the risk judgment structure theory has carried on the discussion, advocated through advocated "the concrete danger said", "the objectivity" - - "the average person saw" or "average person’s idea" by the risk judgment standard limits "the risk" the concept subjectivism tendency, thus limited the tenable scope by this which could not attempted violate and prevents the expanded penalty power suitable scope.

Comparative Study of Attempted Not Guilty

Abstract

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