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不能犯事实上并未着手实施犯罪,而未遂犯是已经实施了犯罪,由于犯罪分子意志以外的原因而未得逞的行为。在德国,不能犯是可罚的,而日本的判例和学说都认为不可罚。在我国传统刑法理论的通说中,不能犯因为具备了主观罪过和客观犯罪行为这两个犯罪构成中最基本的因素,被划分在未遂犯的范畴,应按照犯罪未遂予以处罚。这是不恰当的,其本质上并未能理清不能犯和未遂犯构成的不同。本文将从我国司法实践入手,对各国不能犯学说进行批判,试图寻找一种适合我国国情的学说。
The inability to commit the fact that they did not proceed with the commission of an offense was an act that had already been committed and did not succeed because of a cause other than that of the criminal. In Germany, failing to commit is punishable, and Japan’s jurisprudence and doctrine both consider it imprudent. In the traditional theory of criminal law in our country, the most basic factor that can not be committed because of having both subjective crime and objective crime is divided into the scope of attempted crime and should be punished according to the crime. This is not appropriate, and in essence it fails to sort out the differences between being unable to commit and attempting to commit. This article will start from the judicial practice in our country, and criticize the theory that every country can not commit crimes, trying to find a kind of theory that suits our national conditions.