中国式加重犯未遂问题研究

主张区分加重构成与量刑规则，进而认为前者存在未遂而后者不存在未遂的观点，因与客观未遂论相冲突而不具有合理性。应该说，只要行为人主观上以侵害加重犯的保护法益为目标，客观上也对加重犯的保护法益形成了具体、现实、紧迫的危险，就应肯定加重犯未遂的成立。只要承认故意的结果加重犯概念，就难以否认结果加重犯未遂的成立；发生了加重结果而基本犯未遂的，成立结果加重犯未遂；“杀害被绑架人”以及“奸淫被拐卖的妇女”等结合犯，有成立加重犯未遂的余地；行为人主观上以数额（特别）巨大的财物为盗窃、诈骗目标，客观上也已经对数额（特别）巨大的财物造成具体、现实、紧迫的危险的，成立数额加重犯未遂，适用加重法定刑，同时适用未遂犯从轻减轻处罚规定；数人企图轮奸而未得逞的，不成立“二人以上轮奸”未遂；应区分情节“严重”与“情节”严重，不能完全排除情节加重犯成立未遂的可能性。

A Study on Aggravated Offense of Attempted Crime in China

Aggravated crime is a crime in which aggravating circumstances (factors) and aggravating legal penalty are stipulated on the basis of essential offense in the specific provisions of criminal law. For a long time, whether there is attempted crime of the offense aggravated, how to identify it and how to choose legal punishment has been puzzling the theory of criminal law and judicial practice. According to the traditional theory and practice of criminal law in China, aggravated offense has the form of attempted crime. At the same time, the legal punishment of aggravated offense is applicable and the punishment of lighter punishment for attempted crime. However, some scholars have questioned this. They think that the aggravating crime in China should be distinguished between constitutive elements calling for heavier punishment and rules of sentencing. The former has attempted, while the latter has not, as defined in the so-called “sentencing rule theory”. In this paper, this view conflicts with the theory of the objective attempted and is biased.In fact, whether we can reasonably identify attempted offense directly affects the severity of sentence. Therefore, this paper attempts to solve the attempted problem of aggravated offense in a package, systematically and completely analyze the types of aggravated offense, and extract common rules to deal with the attempted recognition of aggravated offense, which is also the innovation of this paper.First of all, aggregated consequential offense, it is no denying on the establishment of attempted aggregated consequential offense as long as it admits the intentional aggregated consequential offense. If there is aggravating result with basic attempted offense, no matter the perpetrator is intentional or negligent, the legal punishment of aggravated offense and the punishment of lighter punishment for attempted crime is applicable. However, if there is no aggravating result for the causes beyond volition, and the basic criminal act forms a specific, realistic and urgent danger to the legal interests of the aggravated offense, and the actor has intention to the aggravating result, although the above sentencing rules are also applicable, there should be some differences in sentencing whether the basic result occurs or not. Secondly, in the case of combined offense, the attempt of a subsequent crime shall be deemed in principle as an attempt of a joint crime. The legal punishment of aggravated offense and the punishment of lighter punishment for attempted crime is then applicable. The exception is when it is difficult to adapt to crime and punishment, the basic crime and the attempted crime of the subsequent crime can be considered as combined punishment. Thirdly, there is no room for the attempted establishment of consequential aggravated offense, aggravated offense with the role (status) of “primacy” as typical and aggravated offense with multiple persons (times). Fourthly, the definitions of “serious” and “serious circumstances” cannot be confused when determining the aggravating circumstances. The latter is an objective fact, which may not succeed for the causes beyond volition. Therefore, the possibility of establishing aggravating circumstances cannot excluded. Finally, we should make a concrete analysis of the aggravated offense by amount, the object aggravated offense, the place aggravated offense, and the means aggravated offense. When the act has formed a concrete, realistic and urgent danger to the legal interests protected by the aggravated offense, the attempt of aggravated crime can be determined and the legal punishment of aggravated offense and the punishment of lighter punishment for attempted crime are applicable.To summarize, whether the attempted aggravated offense is established or not should be judged according to the objective attempt theory. As long as the perpetrator’s subjective goal is to infringe on the legal interests of the aggravated offense, and objectively also forms a concrete, realistic and urgent danger to the legal interests of the aggravated offense, the establishment of the attempted aggravated offense should be affirmed.