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未遂犯与不能犯区分的关键在于行为有无引发法益侵害的现实、具体危险,基于刑法立场的不同,危险认定存在不同学说。对此,应立足于刑法客观主义,坚持结果无价值论的立场,在危险认定上以裁判时查明的行为时存在的客观事实为资料,以客观因果法则为标准判断行为导致既遂结果发生之可能性,若行为无导致既遂结果发生之可能性或者既遂结果发生之可能性极低时,应认为无危险,认定为不能犯;反之,行为有导致既遂结果发生之可能性,只是由于偶然、意外的因素未发生时,应认为有危险,认定为未遂犯。
The key to the distinction between the attempted and the unworthy committed lies in the reality and the specific danger of whether the act leads to the infringement of the legal interest, and based on the different position of the criminal law, there are different doctrines of the danger identification. In this regard, we should base ourselves on the objectivism of criminal law, insist on the results of non-valueist position, objective facts that existed at the time of the act of reckoning in the determination of danger as the material, and judge the behavior by the objective law of causality as the result of the accomplishment Possibility. If the act has no possibility of causing the resultant result or the possibility of the resulting result is extremely low, it shall be deemed as non-dangerous and shall not be guilty of the offense. On the contrary, the act may lead to the possibility that the resultant result will only be caused by chance, When unexpected factors do not occur, they shall be considered as dangerous and shall be deemed as attempted.