加重罪状的未遂适用研究

加重罪状不是独立的犯罪构成,应当与基本罪状一同适用,问题的实质是加重罪状与基本罪状组合而成的犯罪构成是否具有未遂形态。解决这一问题的前提是对犯罪未遂的本质有准确的把握。犯罪未遂的处罚依据是行为不法,其适用的前提是存在明确的犯罪目标。事实评价型的加重罪状不具备未遂形态。在犯罪目标明确的前提下,仅加重罪量的加重罪状也可以具备未遂形态。

Application of Attempted Crime on Aggravated Accusation

Aggravated accusation is not an independent crime constitution,which should be applied with the basic accusation.The essence of the problem is whether the crime constitution formed by aggravated accusation and basic accusation has the form of attempted crime.The premise of solving this problem is to have an accurate grasp of the nature of the attempted crime.The punishment of attempted crime is based on the illegality of the act.The premise of its application is the existence of clear criminal objectives.The aggravated accusation of the fact-evaluation-type does not have the attempted form.Under the premise that the criminal goal is clear,the aggravated accusation which only aggravates the amount of crime can also have the form of attempted crime.