失敗未遂概念的發展沿革

The Evolution of the Concept of Failed Attempt

失敗未遂概念的發展經歷了從客觀判斷向主觀判斷的轉變。客觀失敗未遂概念最初由義大利學者與法國學者所創設。但德國的客觀失敗未遂概念則與之平行發展。v.Liszt將客觀失敗未遂定義為行為人實施完畢全部犯行之後，犯罪結果確定不發生。此後，Otto首先建立起客觀失敗未遂與行為人主觀認知的聯繫，Hruschka則正式提出了以行為人主觀認知為界定標準的主觀失敗未遂的概念。Hruschka的失敗未遂論述被Schmidhäuser大幅度的簡化，Roxin則以Schmidhäuser提出的主觀失敗未遂概念為基礎，完整的論述了失敗未遂的定義、排除中止犯成立的原因、失敗未遂的類型，以及與可重複實施犯行的聯繫。並最終發展成為了德國學界的通說，得到臺灣學界的認可。

The development of the concept of failed attempt has undergone the transition from objective judgment to subjective judgment. The objective concept of failed attempt was initially created by Italian and French scholars. The objective concept of failed attempt in Germany, however, had developed in parallel with it. v. Liszt had defined the objective concept of failed attempt as the following: The offender had completed all the criminal actions, but the outcome of the crime was determined not to occur. After that, Otto was the first one to establish the connection between the objective failed attempt and the offender's subjective cognition, and Hruschka officially proposed the subjective failed attempt based on the subjective cognition of the offender. Hruschka's concept had been greatly simplified by Schmidhäuser, and based on the concept of subjective failed attempt by Schmidhäuser, Roxin completely discussed the definition of failed attempt, the reasons for excluding withdrawal, the type of failed attempt, and connection with the repeatable criminal actions. Later it became the prevailing opinion of German academia, and also approved by Taiwan's counterpart.