论未遂犯的处罚根据

The Basis of Bearing Criminal Responsibility for Attempted Offense

世界各国的刑法大都规定了未遂犯,未遂犯为何遭受处罚即未遂犯的处罚根据则是中外刑法学者期望解开的谜团。为解开这个谜团,大陆法系出现了主观的未遂论、客观的未遂论和折中的未遂论的理论对立。主观的未遂论认为未遂犯的处罚根据是实现犯罪的行为者的意思或性格的危险性的外部表现。客观的未遂论认为未遂犯的处罚根据是惹起构成要件结果的客观危险性。折中的未遂论认为未遂犯的处罚根据在于实现犯罪的现实危险性和行为人的主观恶性。通过比较研究,我们认为折中的未遂论应是我国刑法中未遂犯的处罚根据。

The criminal law in most countries prescribes attempted offense; all criminal jurists try to hope to answer why attempted offense is punished. In order to solve the basis of bearing criminal responsibility for attempted offense, there existed doctrine of subjective attempt, doctrine of objective attempt and doctrine of eclectic attempt in the continental law system. Doctrine of subjective attempt considers that the basis of bearing criminal responsibility for attempted offense is the realization of the idea of convict or external exhibition of fatalness in his character. Doctrine of objective attempt considers that the basis of bearing criminal responsibility for attempted offense is the objective fatalness that causes the result of important constructive conditions. Doctrine of eclectic attempt considers that the basis of bearing criminal responsibility for attempted offense is the real fatalness of convict＇ s act and his subjective evil character. Through a comparative study of the three schools we come to the conclusion that the basis of bearing criminal responsibility for attempted offense in Chinese criminal law should be doctrine of eclectic attempt.