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自贝卡利亚的《论犯罪与刑罚》始,罪刑法定原则已经使罪与非罪的界限比较明确,但是在刑法理论界还是存在着很多关乎罪与非罪的焦点问题。不能犯就是其中之一。由于我国刑法当中并没有直接规定不能犯,因此我们只能从我国的刑法理论中去找寻不能犯的踪影。受传统的主观主义刑法学影响,我国的不能犯理论通说把不能犯定位成未遂犯的一种,即所有的不能犯都是未遂犯。但是随着我国刑法客观化的不断深入,通说已经不再符合刑法发展和社会现实的需要。笔者在研究危险判断理论的基础上,提出新的不能犯危险判断理论,并在此基础上提出不能犯立法建议,以期对刑法理论和立法的发展、完善做出贡献。
Since Beccaria’s “On Crime and Penalty,” the principle of legally prescribed punishment has made the boundary between sin and non-sin clear. However, there are still many issues concerning criminal and non-sin in criminal law orbit. One of them can not be committed. Since China’s criminal law does not directly stipulate that it can not be committed, we can only look for the traces of incapability in China’s criminal law theory. Affected by the traditional subjectivism of criminal law, our country can not commit theories of the theory that can not be committed as attempted crimes, that is, all can not commit attempted crimes. However, with the continuous deepening of the objective of our criminal law, it is no longer in line with the needs of the development of criminal law and social reality. On the basis of studying the theory of risk judgment, the author puts forward a new theory that can not make danger judgment and puts forward the suggestion that it can not make legislative proposals so as to make contribution to the development and perfection of criminal law theory and legislation.