客观的未遂犯处罚根据论之提倡

Bearing Criminal Responsibility for Attempted offense:Advocacy for the Objective Basis

在现代法治国的不法理论框架内,作为主观未遂论之具体表现的计划理论和印象理论均具有不可克服的内在缺陷。主观的未遂犯处罚根据论虽为德国的通说及立法所采纳,但这不仅有其特定的历史原因,而且目前正受到日益激烈的批判。从世界范围来看,未遂犯论的客观化已成为刑法学发展的趋势和潮流。我国应采纳客观的未遂犯处罚根据论,并以事后查明的行为时全部事实为基础,站在行为时社会一般人的立场来判断法益侵害的危险。

The basis of bearing criminal responsibility for attempted offense is the fundamental question of the theory of attempted offense. It is not only directly related to the scope of the attempt offenses, but also reflects the choice of criminal law values vividly. In the theoretical framework of illegitimacy in modern country under the rule of law, the objective and real possibility of the behaviour of violating legal interests is one of the indispensable elements of the constitution of illegitimacy. Therefore, the theory of plan and the theory of impression as embodies of subjective theory on attempt have serious defects, such as deviation from the principle of violation of legal interests, susceptible to result in subjective incrimination, and so on. Although the sub- jective basis of bearing criminal responsibility for attempted offense is adopted by both German dominating academic theory and its legislation, it has its special historical background and nowadays encounters increasingly hard critiques. From the view of the whole world, objectification of the theory on attempt has become the trend of criminal jurisprudence. As a result, China should adopt the theory of the objective basis of bearing criminal responsibility for attempted offense. As to the basic construction of the objective theory, because the judgment of the danger to legal interests is a kind of normal anticipation based on objective facts rather than subjective knowledge, the model of ＂average person＇s knowledge ＋ feasor＇s special knowledge＂ should be discarded and we should judge it according to all the objective facts at the time of behavior verified afterwards. Since the danger is not in the sense of physics, rather in the sense of legal norms, therefore, the judgment of danger should be on the standpoint of a general person in the society.