客观未遂论坐标下不能犯危险判断标准的重构

中图分类号：D924 文献标识码：A D0I：10.7535/j.issn.1671-1653.2025.03.010

Abstract：The judgment standard of danger for impossibility is the key to distinguishing between impossibility and attempted offense. Among all the judgment standards of danger for impossibility， the objective danger theory is the most objective one in the aspect of judging danger. However，it is complex while being used，and the modified objective danger theory is not perfect. Consequently，the abstract judgmental factors in the objective danger theory should be refined and the degree of objective danger should be limited，thus forming a new objective danger theory. The contents of the theory are as follows： According to the objective facts at the time of the conduct，professionals use professional code，and insiders or ordinary people use life experience to judge that whether the converse content of the reason why a conductor's conduct did not harm legal interests is possble or not to occur. This possibility is that whether the subjective danger of harming legal interests exists or not. If the objective danger exists， professionals should express it in the form of probability，while insiders or ordinary people should express it in degree. If the objective danger does not exist，and its probability is comparatively low and general， the conductor's conduct is impossibility；If its probability is comparatively high，the conductor's conduct is attempted offense.

Keywords： attempted offense; impossibility; judgment standard of danger; objective attempted offense theory

一、问题的提出

不能犯与未遂犯的区别在刑法理论和实务中向来属于难题。（剩余13159字）