■ What is the actor's "reasons other than will" In the theory of criminal law, criminals have two diametrically opposite subjective psychological states when they stop criminal activities, which are divided into attempted crime and suspended crime: attempted crime is forced to stop crime when faced with insurmountable resistance, or the crime cannot be completed, while suspended crime is due to their inner will to voluntarily give up the crime, so that the crime is not completed. Then, besides the will of the actor, what are the reasons? Some scholars think that it only refers to unexpected changes in objective conditions, while others think that it also includes subjective factors that hinder the completion of crimes. As far as the types of accidents are concerned, some scholars divide them into objective reasons and subjective reasons, some scholars divide them into external reasons, internal reasons and internal and external reasons, and some scholars divide them into external material obstacles and internal psychological obstacles. Some scholars believe that the reasons other than the will of criminals are the reasons that hinder the will of criminals. However, most scholars define "reasons other than will" as a boundary that runs counter to the will of the perpetrator to commit and complete the crime. The author believes that the so-called reasons other than will refer to various subjective and objective factors that violate the criminal's will to complete the crime and can prevent the criminal from reaching the accomplished state. In nature, these factors should contradict the subjective desire of the perpetrator to complete the crime; Functionally, it should conflict with the development and completion of criminal acts. As for how to judge whether these factors can prevent the crime from reaching the accomplished state and make the crime be forced to stop in the process of completion, we should take the subjective feeling of the actor as the standard. ■ How to classify the types of "reasons other than will" I think that the "reasons other than will" of the actor can be one of the following situations, or have the following situations: 1 The objective cause of the actor's accident. Including: (1) the strong resistance of the victim. For example, when a robber commits robbery, he is subdued by the other party and loses the ability to continue to infringe. (2) Being stopped by a third party or arrested by a political and legal organ. For example, when a murderer cuts people with a knife, others present seize the murder weapon. (3) The victim escaped effectively. If the criminal has chopped the victim while killing, but he is still chasing after him with a knife, the victim hides indoors and calls the police, making it impossible to complete the crime. (4) Destroyed by natural forces. If the arsonist set fire to the house and just left, it happened that the rain put out the fire. (5) Time and place make it difficult to continue the crime. If a thief enters a warehouse, it is empty. (6) Encountered insurmountable material obstacles. If the criminal can't break into the safe, and so on. Objectively speaking, if the above-mentioned factors that are not conducive to the completion of the crime do not have the function of preventing the perpetrator from continuing to complete the crime, such as the victim's slight resistance, good advice, begging, severe reprimand, solemn warning, etc. Although they also have adverse effects on the completion of the crime, these factors cannot prevent the perpetrator from continuing to complete the crime. If the crime is stopped because of this, it should be stopped, not attempted. 2. The objective reasons of the actors themselves. That is because of the actor's ability, strength, physical condition, skills, experience and so on. , adversely affect the completion of the crime, so that the perpetrator can not complete the crime. For example, due to the actor's low intelligence and poor criminal skills, the lies fabricated when trying to defraud insurance money were full of loopholes, which were seen through by the staff and failed to complete the crime; Open the safe when stealing, and you can't open the safe without knowing the structure of the safe; When killing with a gun, I was nervous on the spot, unable to shoot, and failed to carry out the killing behavior to the end; Or when you commit a crime, you suddenly feel unwell, sick, and exhausted, so that criminal activities cannot continue, and so on. In these cases, the perpetrator did not give up the will to commit the crime, but had to stop the crime because he did not have or lost the criminal ability in fact. 3. The subjective cognition error of the actor. That is, the unfinished crime is caused by subjective incorrect understanding of external objective facts. In theory, it is usually called "factual cognitive error". Specifically, it mainly includes the following situations: 4. Misunderstanding of the infringed object. It means that when the perpetrator sets out to commit a crime, the specific person or thing pointed by the criminal act is not at the scene of the crime, but the perpetrator thinks that the infringed object exists. For example, when deliberately killing people, they mistakenly think that there is someone in the room and shoot, but there is no one in the room at that time, or they mistakenly treat the body as a living person and treat the livestock as a person to kill people. These conditions can't lead to death. 5. Misunderstanding of the tools used. This means that criminals mistakenly use tools that cannot be completed as criminal tools. If you mistake salt for poison and shoot people without bullets, you can't kill others. The reason for exceeding this will is the wrong choice of tools by the actor. 6. Misunderstanding of causality. It refers to the situation that a specific criminal result did not happen, but the perpetrator mistakenly thought that it had happened and stopped criminal activities. If you mistake someone else's coma for death; For example, if the victim was pushed off a cliff, he thought he would die and leave, but the victim didn't fall to death because he was hanging from a tree. 7. Misunderstanding the objective environment around the crime. It refers to the behavior that when the perpetrator begins to commit a crime, the surrounding objective environment is not enough to prevent the completion of the crime, but the perpetrator stops continuing the crime because of misunderstanding. For example, when you steal something, you see a shadow shaking outside the window and mistakenly think that you are found and run away. Actually, it's a tree shadow from the wind. In other words, whether this objective obstacle actually exists does not affect the establishment of attempted crime. Therefore, even if there are no objective obstacles, the perpetrator mistakenly thinks that there are obstacles and gives up the crime. The failure caused by this misunderstanding in fact does not affect the establishment of attempted crime. In short, the author believes that in the above situation, the actor is not "able to do but unable to do", but "willing to do but afraid to do" or "unable to do", that is, for reasons other than will. There are different opinions on the criterion of "reasons other than will". One view is that the reason that can stop the criminal will is the reason that the crime has failed, which should belong to the "reasons other than the will" of the criminal. The "reasons other than will" must be "enough to stop the criminal will". Another point of view is that the above point of view analyzes the force of various factors that hinder the completion of the crime on the perpetrator's criminal will, indicating that it is desirable to determine the standard that is enough to stop the criminal will according to the subjective feelings of the perpetrator. However, the essence of attempted crime is not whether a certain situation is enough to hinder its criminal will, but whether the unfinished crime violates its criminal will. Therefore, the reason of unfinished crime is only the manifestation of attempted crime, and the result of unfinished crime is the benchmark of subjective will feeling of attempted crime. If the unfinished crime does not go against the perpetrator's intention, no matter what the reason for the unfinished crime is, no matter how powerful the reason is, it is not an attempted crime. If the crime is not completed and violates the actor's original intention, it is an attempted crime for whatever reason, which is the essential feature of attempted crime. Therefore, for attempted crime, the criminal process is not important to the criminal will. What matters is whether the result goes against its original intention, which is the foothold of identifying attempted crime. The author believes that the above two viewpoints discuss the problem from different angles. The former explains the actual function of "reasons other than will" and what factors may become "reasons other than will"; The latter is to show that the essence of attempted crime is that the unfinished crime violates one's will. However, the problem of the second view is that there must be factors that hinder the criminal will, so that the actor's unfinished crime is the cognitive basis against his will. Without this premise, there is no way to talk about "will" that goes against his will. No matter what his "will" is, it will always be born of "things". If we can ignore the strength of this factor, how can we determine whether the result of the unfinished crime is consistent with its will? Maybe everyone who hasn't finished his crime can admit that he didn't go against his will. In fact, for some cases in practice, it is not necessary to investigate whether the unfinished crime is against its will, so it can be considered as attempted crime. The reason is that as long as there are such factors, it is enough to prevent them from continuing to implement and complete their criminal will. The reason why we discuss "reasons other than will" is nothing more than to solve the ambiguous situation of whether to "violate one's will" and whether to punish the attempted crime or the discontinued crime. The author believes that in the above circumstances, we should consider the coercive force of these factors on the perpetrator's will to commit a crime, and judge whether the unfinished crime is "against his will" according to the actual effect of specific factors on the perpetrator's will. For example, when rapists rape women, they mistakenly think that they can't have sex and stop committing crimes. Among them, the cognition of "mistakenly thinking that you can't have sexual intercourse" comes from the fact that the victim has menstrual cramps. Only this factor can restrain the perpetrator's criminal will and produce the result of "unwilling to stop committing crimes". If this factor does not make the actor realize that sexual intercourse cannot occur, it means that the actor gave up the crime out of his own will and should be established to stop the crime. Therefore, the author believes that it is necessary to analyze whether specific factors can inhibit the criminal will of the perpetrator, otherwise a correct conclusion cannot be drawn. (The author Lin Yagang is a professor and doctoral supervisor of Wuhan University Law School, and Shen Ming is a judge of Jianghan District Court in Wuhan. )