论未遂犯的处罚依据

On the Basis for the Punishment of Unaccomplished Offenses

犯罪未得逞,实际上就是对刑法所保护的客体没有发生刑法分则所要求的侵害结果。然而,各国刑法对于着手实施犯罪行为,由于犯罪分子意志以外的原因而未得逞的情形几乎都犯罪化了,这就涉及到处罚未遂犯的依据问题。旧派主张以行为对刑法所保护的客体造成的现实危险为依据,而新派则认为犯罪行为所征表出的危险人格是处罚未遂犯的依据。通过比较研究,我们认为,主观罪过是处罚未遂犯的唯一依据。

A crime left uncommitted, as a matter of fact, refers to the offense of the offended without the outcome that meets therequirements of the stipulations of the criminal law. However, the criminalization of such offenses by the criminal laws of variouscountries according to the criminal acts that are left unaccomplished due to accidental reasons is confronted with basis for the pun-ishment of such offenses. The old school bases their judgment on the factual danger of the offended while the new school regards thehazardous personality displayed in the offensive behavior as the basis. Through a comparative study of the two schools of propositionswe come to the conclusion that the only basis has to the subjective crime.