实行的着手

The Commencement of Crime Enforcement

"实行的着手"的判断标准应采取实质的客观说,只要从实质的角度来看存在法益侵害之具体危险性,该阶段即成立未遂犯。而且,行为人的主观方面也是这种具体危险性的判断材料之一。具体而言,在间接正犯与隔离犯的场合,主张在出现了结果发生之具体危险性的阶段始成立未遂犯的"结果说"更为妥当;对于构成要件上要求必须是通过特定手段而引起既遂结果的结合犯而言,不以实际开始实施构成要件所要求的手段、方法为必要,只要存在实际实施这种手段、方法的危险性即可肯定实行的着手。

The criterion of commencement of crime enforcement should be understood by actual objective standard.As long as it has specific risk to the legal interest actually,the stage can be regarded as attempted crime.Perpetrator's subjective aspect is one of judge material of this specific risk.Specifically,the consequence theory claims that as long as it has specific risk to the consequence,the stage can be regarded as attempted crime.This theory is more appropriate when there is indirect principal and offence of segregation.For combinative offence whose constitutive requirements ask it must led to accomplished result by specific means,it is not necessary to actually start to enforce the means and method of constitutive requirements.As long as it has danger to actually enforce this means and method,it can be regarded as commencement of crime enforcement.