| The basis of bearing criminal responsibility for attempted offense is the fundamental question of the theory of attempted offense. It is not only directly related to the scope of the attempt offenses, but also reflects the choice of criminal law values vividly. In the theoretical framework of illegitimacy in modern country under the rule of law, the objective and real possibility of the behaviour of violating legal interests is one of the indispensable elements of the constitution of illegitimacy. Therefore, the theory of plan and the theory of impression as embodies of subjective theory on attempt have serious defects, such as deviation from the principle of violation of legal interests, susceptible to result in subjective incrimination, and so on. Although the subjective basis of bearing criminal responsibility for attempted offense is adopted by both German dominating academic theory and its legislation, it has its special historical background and nowadays encounters increasingly hard critiques. From the view of the whole world, objectification of the theory on attempt has become the trend of criminal jurisprudence. As a result, China should adopt the theory of the objective basis of bearing criminal responsibility for attempted offense.As to the basic construction of the objective theory, because the judgment of the danger to legal interests is a kind of normal anticipation based on objective facts rather than subjective knowledge, the model of “average person’s knowledge + feasor’s special knowledge” should be discarded and we should judge it according to all the objective facts at the time of behavior verified afterwards. Since the danger is not in the sense of physics, rather in the sense of legal norms, therefore, the judgment of danger should be on the standpoint of a general person in the society. |
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