犯罪未遂基本问题研究

【作者】 郑磊；

【导师】 刘德法；

【作者基本信息】 郑州大学 ， 刑法学， 2003， 硕士

【摘要】 犯罪未遂是刑法学界研究的一个重点，国内外存在有很多不同观点。本文从三个方面对犯罪未遂进行了阐述： 一、犯罪未遂的概念和特征 关于犯罪未遂的概念，国内外有两种观点，第一种观点以法国为代表，第二种以德国为代表。我国采用第一种观点，笔者认为我国刑法关于犯罪未遂的概念是科学的。即已经着手实行犯罪，因为犯罪分子意志以外的原因而未得逞的是犯罪未遂。 笔者认为犯罪未遂的特征有三点：一是已经着手实行犯罪，这是犯罪未遂区别于犯罪预备的标志；二是犯罪未得逞，这是犯罪未遂区别于犯罪既遂的标志；三是犯罪未得逞是由于犯罪分子意志以外的原因，这一点把犯罪未遂与犯罪中止区别开来。在对上述三个特征的评论分析上，主要从两个方面进行，一是各个特征的含义；二是在具体实际中，每个特征的如何认定。 二、犯罪未遂的种类 根据我国刑法理论，笔者认为犯罪未遂有两种类型，即实行终了的未遂与未实行终了的未遂之分，能犯未遂与不能犯未遂之分。 关于实行终了的未遂与未实行终了的未遂。主要探讨两个问题：第一，犯罪行为是否实行终了以什么为标准；第二，在犯罪未遂案件中，行为是否实行终了的社会危害程度一般不同。关于能犯未遂与不能犯未遂，主要论述了，一是能犯未遂的种类和名称；二是不能犯未遂应刑事责任的根据；三是不能犯未遂与迷信犯的危害程度有无不同。 三、犯罪未遂应负刑事责任的根据及处罚原则 第一，犯罪未遂应负刑事责任的根据。笔者认为犯罪未遂应刑事责任的根据是犯罪构成。第二，笔者就如何正确理解我国刑法规定的犯罪未遂的处罚原则进行了论述。主要从三个方面进行，一是被比照的既遂犯应与未遂犯的犯罪情况大致相同；二是“从轻”、“减轻”处罚的含义，三是如何理解“可以”的含义。更多还原

【Abstract】 Attempt of crime is a point of importance to research for the penology circle and there exist many different viewpoints at home and abroad. The paper sets forth the attempt of crime from three aspects.1. The concept and features of attempt of crimeThere are two viewpoints at home and abroad concerning the concept of attempt of crime. The first viewpoint is represented by France and the second viewpoint by Germany. Our country adopts the first viewpoint. The author considers the concept of attempt of crime specified in our criminal law is scientific. Namely, an attempt of crime refers to a case where an offender has already started to commit a crime but is prevented from completing it for reasons independent of his will.The author considers the attempt of crime have three features. Primarily, the crimes have been set about to carry out, which is the mark distinguished the attempt of crime from the preparation of a crime; Secondly, the crimes don’t finished, which is the mark distinguished the attempt of crime from the accomplishment of a crime; Thirdly, the reasons that the crimes don’t finished are independent of the wills of the offenders, which distinguishes the criminal attempt from the desistance of a crime. The comment and analysis for the above three features, is mainly carried out form two aspects. The first is the meanings of all the features and the second is how to recognize every feature in the specific practices.2. The category of attempt of crimeAccording to the theory of our crime law, the author considers attempt of crime has two categories. Namely, the classification between the completed attempt and the uncompleted attempt and the classification between the possible criminal attempt and the impossible attempt.On the completed attempt and the uncompleted attempt, there mainly are two questions to discuss. Firstly, what is the standard to decide whether the criminality has finished or not; Secondly, in the case of attempt of crime, the extent of injury for society generally is different concerning whether the behavior made an end or not. Onpossible criminal attempt and impossible criminal attempt, three aspects are discussed. Primarily, the category and name of possible criminal attempt; Secondly, the basis of bearing the criminal responsibility for impossible criminal attempt; Thirdly, whether the extent of injury is different between the impossible criminal attempt and superstitious offense.3. The basis and punishment principles of bearing criminal responsibility for the attempt of crimeFirstly, concerning the basis of bearing criminal responsibility for attempt of crime, the author considers the basis of bearing criminal responsibility for attempt of crime is the constitution of a crime. Secondly, the author discusses how to understand correlatively the punishment principles of attempt of crime specified by our crime law, which mainly is carried out from three aspects. Primarily, the conditions compared between the offender of an accomplished crime and offender of a criminal attempt are much the same; Secondly, what are the meanings of "being given a lighter punishment " and "being given a mitigated punishment"; Thirdly; how is the meaning of "can" understood.更多还原