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着手是区分预备与未遂的关键,着手时点是犯罪阶段中未遂的临界点,其与不能犯的判断是未遂犯领域中两个不同的问题。实质客观说以法益侵害的紧迫性危险作为认定着手的具体标准,但出于未遂犯的客观构造,实质客观说需要以犯罪计划作为判断资料。着手的“时空性”特征使得着手判断在一定程度上超越了未遂犯处罚根据论的限制,而展现出理论上独立的一面。实质客观说瓦解了实行行为作为预备与未遂的区分标准的机能。
Getting started is the key to distinguish between preparation and attempted. At the starting point, it is the attempted critical point in the criminal process. The judgment about whether it can not be committed is two different problems in the field of attempted crime. Substantively and objectively speaking, the urgent danger of legal interests infringement is taken as a concrete criterion for determining the starting point. However, due to the objective construction of the attempted offense, the objective and objective aspects of the attempted offense require that the criminal plan be used as the judgment data. The “space-time” character of the embarked on makes the judgments that begin to proceed to some extent go beyond the limitations of attempted offenses and show a theoretically independent side. Substantive objectivity disrupts the function of implementing conduct as a criterion of distinction between preparedness and attemptedness.