未遂犯可罰性基礎及著手實行概念：風險輸出理論的建構與應用

The Basis of the Punishment for Attempt and the Concept of Attempt: Construction and Application of Theory of Risk Exportation

本文以法主體論述重新詮釋古典自由主義下的侵害原則，藉此建構未遂犯可罰性基礎及界定著手實行概念。未遂犯可罰性基礎在於非理性地否認他人尊嚴而侵害他人權利，而著手實行概念則為此一基礎之具體化，即個人從其法權領域「輸出風險」至他人法權領域中。對故意未遂犯之著手實行的成立而言，規範風險輸出和主觀風險輸出皆為必要；前者落在依規範觀點，以行為人主觀認知的事實為基礎而定出的侵害進程最後可逆轉時點；後者落在依行為人觀點而定出的侵害進程最後可逆轉時點。在規範化的詮釋下，兩者合致時固然成立故意未遂犯的著手實行，兩者並不合致、但歸屬於同一風險關係時亦能成立故意未遂犯的著手實行。藉由風險輸出理論的建構與應用，可解消以往主觀未遂理論、客觀未遂理論、規範未遂理論三者的獨斷與對立。

The purpose of this article is to reconstruct the basis of the punishment for attempt and to define the concept of attempt from the perspective of the harm principle based on the legal subjectivity. The author argues that the wrongdoing in criminal law means infringement of rights of others. In this vein, the concept of attempt as the realization of such infringement can be defined as “exporting risk from one’s own rights sphere to another’s”. Risk exportation from normative perspective and that from subjective perspective are both necessary for the intentional attempt. Risk exportation from normative perspective occurs, when the offender’s act to harm is irreversible based on the facts that he perceived. Risk exportation from subjective perspective is found by the time that the offender thinks the harm irreversible. Under the normative interpretation, intentional attempt is established when two kinds of risk exportation are concurrent. Even if that is not the case, intentional attempt should be considered established, when the two kinds of risk exportation occur in the context of the same risk. The theory of risk exportation could solve the conflicts among the objective