Abstract：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.
陈洪兵. 中国式加重犯未遂问题研究[J]. 浙江大学学报(人文社会科学版), 2021, 51(2): 111-125.
Chen Hongbing. A Study on Aggravated Offense of Attempted Crime in China. JOURNAL OF ZHEJIANG UNIVERSITY, 2021, 51(2): 111-125.
2021, Vol. 51 
