不能犯未遂构成特征新论

不能犯研究的重心是确立不能犯未遂的成立条件与不可罚的不能犯相区别。传统的刑法理论关于不能犯未遂的研究存在误区。对于不能犯未遂的成立条件应从以下几点来分析:客观上行为具有法益侵害的相称性;主观上具有犯罪故意及犯意指向的明确性;不完全具备《刑法分则》规定的全部构成要件;行为人对事实存在认识错误。

An Analysis of an Unaccomplished Crime Due to Impossibility

The key problem in studying impossibility lies in that the element required for an unaccomplished crime due to impossibility differs with that required for the impossibility upon which a punishment cannot be imposed.Traditional criminal law theory errs in the study of the unaccomplished crime due to impossibility.This authors maintains that while analyzing the conditions required for an unaccomplished crime due to impossibility,we must pay attention to the following elements: 1) Objectively the interests encroached fall within the range of interests prescribed by law;2) The defendant has obvious subjective criminal intent;3) What the defendant intends to do does not entirely meet the elements required by the relevant chapters of criminal law;and 4) the actor mistakenly assesses the existing fact.