未遂犯處罰根據的實踐展開

Practical Unfolding of the Punishment Basis for Attempted Offenders

在未遂犯處罰根據的問題上，存在著主觀未遂論與客觀未遂論的爭論。其中主觀未遂論是我國司法實踐的主流立場，而客觀未遂論是我國學界的有力觀點，兩者始終處於對立之中，對此顯然有反思的必要。學理上對我國的司法判决提出了許多質疑意見，但都存在問題。其中客觀危險說無法認定未遂犯中的具體危險，也不符合刑法的法益保護目的，而具體危險說則有滑向主觀未遂論的“危險”。因此實踐中的判决結論多數是合理的，只是其論證理由需要理論加以提升。就未遂犯的成立範圍而言，以印象說為基礎的重大無知標準具有合理性，就未遂犯的著手認定來說，優先判斷主觀構成要件，並將故意作為判定的重心具有必要性。上述觀點總體符合司法實踐的立場，同時又完善了其說理上的不足，是較為務實的處理方案。

On the basis of punishment for attempted offense, there is a debate between the subjective attempt theory and the objective attempt theory. The subjective attempt theory is the mainstream position in China's judicial practice, while the objective attempted crime is a powerful point of view in China's academic circles. The two are always in opposition, which is obviously necessary for rethinking. There are many questionings about China's judicial decisions academically, hut these reviews have some problems. Among them, the objective danger theory can not identify the specific danger in the attempted offense, nor does it accord with the legal interest protection purpose of criminal law, while the specific danger theory has the 'danger' of sliding to the subjective theory on attempt. Therefore, most of the judgment in practice are reasonable, hut the reasons for their arguments need to he improved theoretically. As far as the establishment scope of attempted crime is concerned, the standard of material ignorance based on the impression theory is reasonable. As for the determination of attempted crime, it is necessary to give priority to the subjective constituent elements and to take intention as the focus of judgment. The above views are generally in line with the position of judicial practice, and will improve its lack of reasoning. It is a more pragmatic treatment scheme.