质疑加重构成与量刑规则的区分——兼与张明楷、柏浪涛、王彦强三位商榷

区分说批评传统加重构成说不当扩大了未遂犯处罚范围，提出应将法定刑升格条件区分为加重构成与量刑规则，认为前者存在未遂、后者不存在未遂。其中，行为类型标准说与构成要件品质标准说认为，行为人意图盗窃数额（特别）巨大财物而未得逞的，仅成立盗窃数额较大的未遂、适用数额较大的法定刑。这种立场明显与客观未遂论相冲突，亦不利于保护法益，还会形成罪刑失衡的“断崖式”判罚结果，因而不具有合理性。是否成立未遂，只需根据行为是否已经对法益形成了现实、紧迫的危险进行客观判断。《盗窃解释》与《诈骗解释》中关于未遂犯的规定只是注意性规定，即，无论是盗窃、诈骗数额较大、巨大还是特别巨大，均能成立未遂，并应适用相应的法定刑。

Distinction between the Composition of Query Aggravation and Sentencing Rules——A Discussion with Zhang Ming-kai,Bai Lang-tao and Wang Yan-qiang

The differentiation theory criticises the traditional aggravation composition theory on the improper expansion of the scope of punishment for attempted crimes. The differention school puts forward that the condition of upgrading legal punishment should be divided into aggravating constitution and sentencing rules, and holds that the former has attempt but the latter does not. Among them, the standard theory of the type of behavior and the quality standard of the constituent elements believe that the attempted theft of a large amount of property with intent to steal a large amount of property but failed to succeed refers to an attempt to steal a larger amount and should be subject to a larger amount of legal punishment. This view obviously conflicts with the objective attempt theory and is not conducive to the protection of legal interests. This position will also form a “cliff” penalty result of the imbalance between crime and punishment, so it is not reasonable. Whether the attempt is established or not, it is only necessary to objectively judge whether the legal interest has formed a realistic and urgent danger. The provisions on attempted crime in Interpretation of Theft and Interpretation of Fraud are only provisions for notice. That is to say, the theft and fraud with large amount, huge or especially huge can be established as attempt, and the corresponding legal punishment should be applied.