中外刑法理论中的不能犯比较

Comparison of impossibility of crime between China and foreign countries

长期以来,不能犯一直是刑法理论中争论不休的话题,其中,不能犯不为罪、不可罚与不能犯可罚是争议的焦点。各国立法的不同反映出各国刑法基本立场的不同。鉴于我国新刑法倾向于客观主义的立场,因此,我国应在立法上明确规定不能犯不具有可罚性。

Impossibility of crime is an argued topic in the criminal law theory. The focus is impossibility of crime not considered as criminal, unpunishable and impossibility of crime punishable. The various legislation reflects the different standpoint of criminal law. From comparing the legislations and standards of how to judge impossibility of crime in foreign countries, our country should also consider impossibility of crime as unpunishable.