Standpoint of this Dissertation

3.2.2.1 Attempt in basic crime is the Standard of Attempt in Aggravated Consequential Offense

Whether attempt in basic crime can be the standard of the attempt in aggravated consequential offense depends on, firstly,the position of basic crime in aggravated consequential offense. If basic crime is an important part of aggravated consequential offense, there should be some association between attempt in basic crime and the attempt in aggravated consequential offense. On the contrary, if basic crime is just a representation of special dangerousness for causing extended result, it has limited effect on aggravated consequential offense beyond the illegality of the special dangerousness.

The theoretical construction of aggravated consequential offense restricts the position of basic crime logically. Although there is no certain relationship between the theoretical constructions of aggravated consequential offense and the influence of attempt in basic crime, the position of basic crime varies in different theoretical constructions logically. Then, theoretical constructions have a different attitude towards attempt in basic crime. If the illegality of basic crime is trivial to aggravated consequential offense, it should not be a judgment for the attempt in aggravated consequential offense. On the contrary, if illegality of basic crime is the basis of punishment for aggravated consequential offense, it is possible to establish the attempt in aggravated consequential offense because basic crime is unaccomplished.

① Ma Kechang, Comparative Research on Aggravated Consequential Offense, 1993, Wuhan University Journal(Philosophy & Social Science Edition), (6), p123.

② Lu Shizhong, New Research on Disputed Questions on Accomplished Aggravated Consequential Offense, 2013 ,Political Science and Law, (5), p124-125.

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More specifically, the single construction theory takes extended result as the objective condition that is auxiliary of the basic crime. Then the property of basic crime determines that of aggravated consequential offense. Therefore, the attempt in basic crime should establish the attempt in aggravated consequential offense. And if extended result does not occur, attempt should not be established. If aggravated consequential offense consists of basic crime and the crime of causing extended result, it is possible to admit the effect of the attempt in aggravated consequential offense on aggravated consequential offense. Meanwhile, the lacking of extended result may also lead to attempt in aggravated consequential offense. The dangerousness theory attaches attention from the inherit danger led by basic crime to the happening of extended result, thus the illegality of basic crime may be ignored. So from the view of dangerousness theory, aggravated consequential offense is an aggravated kin of crime which is caused under the special dangerousness of basic crime, and it is possible to decrease the existence value of basic crime. But lacking of extended result is significant for the attempt in aggravated consequential offense.

According to the dual combination theory advocated in this paper, aggravated punishment for aggravated consequential offense firstly is based on the combination of basic crime and crime of causing extended result. It is obvious that illegality and culpability of aggravated consequential offense can exceed that of the combined separate crimes, thus such criminal pattern certainly can be punished by the aggravated punishment. Meanwhile, legislators pay attention to the fact that some basic crimes may lead to inherent dangers in the extended result. And base on these dangers, legislators can add substantial content to the combination of basic crime and crime of causing extended result, thus it is possible to impose the severity of punishment on the defendant who creates the special dangerousness in the course of committing basic crime. Therefore, basic crime is vital to legalize the punishment for aggravated consequential offense. On the circumstance of attempted basic crime, the illegality of

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aggravated consequential offense is uncompleted. Thus it is reasonable to be treated as the attempted crime in order to reduce the punishment according to the principle of proportionality.

Some scholars may concern that the lenient punishment in statutorily aggravated punishment may indulge criminals. However, if basic crime is attempted offense, defendant is punished by aggravated sentence on the basis of the leniency. In Chinese criminal law, the principle of punishment towards attempted crime is giving a slighter or mitigated punishment. Then, there is not any difference between the following two methods: one is that firstly slights or mitigates, and then aggravates the statutory punishment; the other is that firstly aggravates then slights or mitigates the statutory punishment. For example, if the defendant does not accomplish the perpetrating robbery, he can be given a mitigated punishment, i.e.,fix-term imprisonment of less than 3 years.

Then, to aggravate the punishment on the basis of fix-term imprisonment of less than 3 years, he will be sentenced to fix-term imprisonment from3 to 10 years. Oppositely, to reduce the punishment on the basis of fix-term imprisonment of not less than 10 years, life imprisonment or death, he may be sentenced to fix-term imprisonment of not less than 10 years as the basis is life imprisonment. Therefore, strictly speaking, the attempt in basic crime does not lead to slighter punishment. On the contrary, this method remedies the risk caused by harsh statutory punishment in Chinese criminal law.

Moreover, Japanese Penal Code scholars disagree with taking attempt in basic crime as a sign of the attempt in aggravated consequential offense, as they worry about the reduction and exemption of the punishment on the abandonment.In Japanese Penal Code, the punishment on abandonment (or discontinuation) can be reduced or exempted in the Section 43 of the Japanese Penal Code. Japanese scholar professor points out that in the circumstance that death occurs, if the attempt in robbery causing death is judged according to the attempt in robbery, it is possible that the case of stopping theft after death will be treated as abandonment of robbery causing death and the defendant will be

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exempted from the punishment. It is unnecessary to admit the possibility of such as light punishment.^①

Similarly, in the German Penal Code, the principle of punishment towards the abandonment is the personal ground for punishment elimination. Meanwhile, Germany jurists support that the attempt in basic crime is regarded as the standard of the attempt in aggravated consequential offense, which results in the problem of excessively slight penalty. One case took place in German: Several defendants took guns for theft. The guns were used to threaten victims if they should try to revolt. But there was an accident happened. A defendant shot one victim unintentionally and caused the victim’s death.

The other defendants were very angry and condemned the shooter strictly. Also they stopped the theft and left without any booties. Germany federal court considered that the provision of abandonment could be applied to this case and then only sentenced the defendants of negligent homicide(Section 222 in German Penal Code).^② Parts of people disagree with the judgment. For instance, German jurist Roxin points out that in aggravated consequential offense, it is possible to completely understand the integral crime in the context of “constitutive conduct” through language. In other words, it is to understand the attempted basic crime that is combined with extended result. But he did not deny the significance of attempt in basic crime.^③He added that “This basic crime (or attempt) and this extended result constitute a uniform ‘constitutive conduct’ that is impossible to abandon after the occurrence of extended result, and thereby making the attempt on the basic crime, which is punishable, continues to exist as the connective point of aggravating punishment”.^④

German jurist Roxin’s solution may be an expedient. But it is doubtful that whether there is a clear boundary between the requirements for the obstacle attempt and the

① Atsushi Yamaguchi, Close-up to Criminal Law: General Part, 2003, Seibundoh Publishing Co., Ltd, p38.

② Claus Roxin, German Penal Code: General Part (VolumeⅡ), Wang Shizhou, Lao Dongyan, Wang Ying, etc.

(trans), 2013, Law Press•China, p 428.

③ Claus Roxin, German Penal Code: General Part (VolumeⅡ), Wang Shizhou, Lao Dongyan, Wang Ying, etc.

(trans), 2013, Law Press•China, p 429.

④ Claus Roxin, German Penal Code: General Part (VolumeⅡ), Wang Shizhou, Lao Dongyan, Wang Ying, etc.

(trans), 2013, Law Press•China, p 429-430.

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abandonment attempt. In other words, in German or Japanese Penal Codes, taking attempt in basic crime as a sign of the attempt in aggravated consequential offense may cause lighter punishment. However, in the Article 24(2) of the Chinese Criminal Law, whether the injury is caused is taken as the standard towards the punishment to abandonment. Besides, the statutory punishment is really very strict towards the criminals who lead to victim’s death in some situation such as robbery and rape. Then, even if the punishment reduces from death to life imprisonment, it would not go far to be excessively slight. Thus, in Chinese criminal law, it is relative reasonable to take the attempt in basic crime as the reason for determining the attempt in aggravated consequential offense, and it does not have the problem of punishing the abandonment that is existed in German and Japanese Penal Codes.

In conclusion, attempt in basic crime can be taken as the sign of the attempt in aggravated consequential offense sufficiently. But some crimes do not have in special danger to cause in extended result in some attempt in basic crime situation. Then attempt in basic crime doesn’t exist towards these crimes. For example, in terms of the intentional injury in the Chinese Criminal Law, if crime does not cause serious injury, defendant should not be convicted of injury causing serious bodily harm or death. Of course, as mentioned above, the special danger of basic conduct should be judged according to all the objective risk factors. In the circumstance that particular intention of inflicting bodily harm to the victim does not become actual result, the extended result may be caused by the victim’s special constitution or surrounding risk factors. In such situation, if the special dangerousness has immediately become the actual result, the lesser result should be included in the extended result. Therefore, the basic crime is accomplished rather than attempt, and the establishment of injury causing death or serious harm cannot be denied on the ground of the attempt in the basic crime.

3.2.2.2 Discussion on the Situation in which Extended Results Don’t Happen

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Whether extended result occurs is taken as the sign of attempt in aggravated consequential offense depends on the relationship between aggravated consequential offense and combinative crime. Aggravated consequential offense on basis of intention is taken as combination of intentional basic crime and intentional crime of causing extended result, and the happening of the result is not taken as the requirement for establishing the intentional crime. In terms of the viewpoint mentioned above, the attempt in aggravated consequential offense can be established in the circumstance that the extended result does not occur. The position of extended result in laws has direct significance for judging the establishment of attempt in aggravated consequential offense. If extended result is considered as the requirement for establishing aggravated consequential offense, lacking of extended result can only deny the establishment of aggravated consequential offense, and the attempt in aggravated consequential offense cannot be established. On the contrary, if extended result is just to imply the criminal conduct of intentional crime or negligent crime, it is possible to constitute the attempted crime in the absence of extended result. This paper insists that extended result is the requirement for establishing aggravated consequential offense, but not for accomplishment. Therefore, if extended result is not caused, aggravated consequential offense would not be established, nor would the attempt in aggravated consequential offense. The specific reasons are as follows.

Firstly, it is not mutually exclusive between aggravated consequential offense on basis of intention and necessity of extended result. Nowadays, the influence of occurrence of extended result mainly depends on the substance of intentional aggravated consequential offense. According to the approach, if aggravated consequential offense on basis of intention is convicted, lacking of extended result is just the sign of the attempt in aggravated consequential offense. But defendant’s attitude towards the extended result cannot determine the property of extended result directly.

For example, in crime of losing firearms without report, provided in the Chinese

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Criminal Law, the subjective requirement includes the intention of causing serious result.^① Meanwhile, general opinion considers that if serious consequence does not occur, defendant cannot be convicted of the crime of losing firearms without report.^② Thus, even if some illegal elements are based on intentional subjective factor, the judgment should not exclude these elements as the necessity to the criminal’s establishment. Similarly, in the circumstance that defendant intends to cause extended result, the objective property of the extended result does not thus change. Some scholars may consider that aggravated consequential offense can be generated by the basic crime with intention combined with the intentional crime of causing extended result.

Therefore, when the intentional crime is not accomplished, the aggravated consequential offense should be attempted crime. But there is a difference between defendant’s intention to cause extended result and intentional crime of causing extended result on limiting the aggravated consequential offense. The intentional crime consists of the accomplished crime and the attempted crime. The intentional crime, as a component of combinative crime, is likely to be limited as accomplished crime with intention. It means that the happening of the extended result may be sufficient to establish the aggravated consequential offense on basis of intention.

Secondly, there is some difference between aggravated consequential offense and original combinative crime. Many people take the aggravated consequential offense on basis of intention as combinative crime. For example, robbery with intention to murder is understood as combination of robbery and murder. Then when the murder is unaccomplished, death caused by robbery causing death should be convicted as attempt.^③But it is not suitable to consider the aggravated consequential offense on basis of intention as combinative crime. Combinative crime is formed by independent crimes

① Li Hong, On Several Questions of Objective Punishment-Conditions, 2010, Journal of Henan Administrative Institute of Politics and Law, (1), p24;Zhou Guanguan, Objective Punishment Conditions, Chinese Journal of Law, 2010 (6);Research on the Form of Mental State Requisite to the Crime of Losing Gun without Reporting, 2005, Law Review, (5), p118.

② Zhang Mingkai, On Attempted Offense, 1998, Law Press·China, p28.

③ Chen Hongbin, On Robbery Causing Serious Injury and Death, 2013, Legal Forum, (5), p105.