Controversies and Normative Selection Regarding the Criteria for Determining "Commencement"

Wanhong Zhang

doi:10.54097/jngmxt22

Authors

Wanhong Zhang

DOI:

https://doi.org/10.54097/jngmxt22

Keywords:

Commencement, Criminal Attempt, Impossible Attempt, Subjective-Objective Mixed Theory of Attempt, Concrete Danger Theory.

Abstract

The "commencement" is pivotal for identifying criminal attempt and serves as the basis for punishment, yet its determination standard remains contentious in both theory and practice. Research reveals that judicial practice employs inconsistent criteria for judging "commencement" (e.g., formal objective theory, substantive objective theory, and subjective theory), leading to inconsistent rulings, undue expansion of the scope of attempt punishment, and risks of subjective conviction. Traditional theory and practice treat impossible attempt as a subset of criminal attempt, typically applying the formal objective theory to determine "commencement" and punishing it based on social harm as a substantive criterion—a foundation still rooted in the objective theory of attempt. This has fueled disputes between theory and practice regarding the basis for punishing attempts and the punishability of impossible attempts. A viable theory of attempt must begin with legislation while accommodating judicial practice. Thus, grounded in China’s legal framework and practice: The subjective-objective mixed theory of attempt should be established as the basis for punishment; The formal objective theory, integrated with subjective and objective elements, must be consistently applied to identify "commencement"; The concrete danger theory should distinguish attempt from impossible attempt, clarifying the boundary between crime and non-crime.

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