未遂犯的處罰根據－－從比較法觀點的思考

在探索中國大陸地區刑法有關未遂犯的處罰根據時，有必要從比較法（德國、日本、中國臺灣地區「刑法」）的視角加以比較分析與思考。目前大陸地區討論相關問題的文獻，多數以日本學說作為依歸（采客觀未遂論），少數則以德國學說作為依歸（采主觀客觀混合未遂論），而忽略了二者在思維上根本的差異、不同以及與大陸地區刑法規定的合致性，此亦形成目前學說見解紊亂的因素之一。實際上，大陸地區刑法有關未遂犯的處罰根據，是以主觀未遂理論為基礎而輔以客觀未遂理論的折衷立場。雖然表面上與多數德國學說主張的主觀客觀混合未遂理論相同，但實質上在客觀面存在差異。德國的混合理論的客觀面乃「法秩序的危殆化」，而大陸地區的混合理論的客觀面則為「法益侵害的危險性」或「結果發生的危險性」。

The Chinese mainland criminal law is not only quite different from the criminal laws of Germany, Japan, and Taiwan of China in terms of its legislative provisions regarding attempted crime, but also has quite different opinions on the content of attempted crime in its theoretical system. Besides, ''The Four Essentials Theory'' of Chinese mainland criminal law in the past has no detailed analysis and explanation on the basis of punishment for attempted crime. Therefore, when we explore the basis of punishment for attempted crime in the Chinese mainland criminal law, comparative analysis and thinking must be made from the perspective of comparative law such as the criminal laws of Germany, Japan and Taiwan of China. At present, a large number of materials related to attempted crime from Germany and Japan are used in the Chinese mainland to discuss, especially on the issue of impossible crime. In the end, most scholars of the Chinese mainland rely on Japanese doctrine (adopting objective attempt theory), while a few scholars rely on German doctrine (adopting subjective and objective mixed attempt theory). However, they all ignore the fundamental differences between the Japanese doctrine and the German doctrine in their thinking as well as the compatibility with the criminal law provisions of the Chinese mainland, which is one of the factors that form the disorder of the opinions on the basis of punishment for attempted crime in the Chinese mainland criminal law. Although the Chinese mainland criminal law tends to subjective and objective mixed attempt theory on the surface, it is different from that in Germany, which is ''the danger of law order'', while it is ''the danger of the infringement of legal interests'' in the Chinese mainland.