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不能犯理论最先运用的是在1804年由德国著名的刑法学者费尔巴哈率先提出,近现代以来,我国对于不能犯的问题也展开了系统而深入的研究,并多次借鉴外国理论,结合我国实际情况,不少学者提出了属于自己的不能犯理论。事实上,无论是刑法理论方面还是司法实践中,不能犯都有其独立的存在价值。我国张明楷教授以及大多数学者认为不能犯问题是刑法不能处罚的问题,不能够作为犯罪加以处罚。对于这个观点基本赞同,但是如果从不能犯形式具体划分,尤其是结合现实生活,我认为有待商榷和讨论。
Can not make the theory first used in 1804 by the famous German criminal law scholar Feuerbach took the lead in the modern since our country has also conducted a systematic and in-depth study of the problem can not be committed, and repeatedly draws on foreign theory, According to the actual situation in our country, many scholars have put forward their own theory of not being able to commit crimes. In fact, no matter criminal law theory or judicial practice, can not commit has its own independent existence value. Professor Zhang Mingkai and most scholars in our country think that the problem can not be committed is a problem that criminal law can not punish and can not be punished as a crime. I agree basically with this view, but if it can never be divided into specific forms, especially in the light of real life, I think it is open to discussion and discussion.