数额犯未遂问题研究——以销售假冒注册商标商品罪为例

在数额犯中,"数额"不是界分犯罪既遂与未遂的标尺,也不是数额犯刑罚发动的内在动因,"数额"是数额犯犯罪构成要件中量的规格,是一种犯罪构成要件要素,在犯罪成立层面起到区分罪与非罪的作用。数额犯存在未遂的犯罪停止形态,这并非是由"数额"本身所规定,而是由刑法总则中关于未遂犯罪的一般规定与刑法犯罪概念的"但书"规定所决定的。

A Study on Issues of the Attempted State of the Crime of Amount Take the Sale of Goods Using Counterfeit Registered Trademark as An Example

This paper takes selling goods bearing counterfeited registered trademarks for example to discuss several issues about the crime of amount in our criminal law. In the crime of amount,the amount of crime is not the standard to distinguish the accomplished state from the attempted state of the offense, nor the internal reason of penalty. The amount of crime is the specification of amount of the elements of thecrime,a factor of the elements of the crime, and takes a role of distinguishing guilt from non-guilt. The crime of amount has the attempted state of the offense. This is not determined by the amount of the crime itself ,but by the law of attempted state of the offense in general provision of criminal law and the＂Proviso＂ in the crime concept.