ATTEMPT AS A STAGE IN COMMITTING A CRIMINAL OFFENCE Cover Image

ПОКУШАЈ КАО СТАДИЈУМ У ИЗВРШЕЊУ КРИВИЧНОГ ДЕЛА
ATTEMPT AS A STAGE IN COMMITTING A CRIMINAL OFFENCE

Author(s): Dragan Jovašević
Subject(s): Law, Constitution, Jurisprudence, Criminal Law
Published by: Правни факултет Универзитета у Нишу
Keywords: preparation of a criminal offence; perpetration; consequence; intentional fault; criminal offence; attempt; impossible attempt; criminal liability; penalty

Summary/Abstract: The process of committing a criminal offence includes a few independent yet mutually related stages or phases, such as: decision to commit a criminal offence, the preparation of a criminal offence, an attempt to commit an offence, an impossible attempt, an inchoate offence, and a completed criminal offence. The act of perpetration may require some pre-conditions and assumptions, and engaging in some preparatory activities which are to make the criminal act possible or easier to perform. It is a well-known rule that engaging in a criminal actus reus (which is defined as an essential element of a criminal offence) must lead to a consequence (which is defined as a change or a state caused in the external world); this is classified as a completed criminal act. In reality, however, the result or consequence is often absent (often due to the activity of another). In such cases, the act is qualified as an attempt to commit a criminal offence (also defined as an inchoate crime). In addition, legal theory recognizes a qualified attempt. In case when, in spite of engaging in the act of perpetration, the result or consequence of a criminal offence is absent due to the inadequate tools or inappropriate objects, there is an impossible attempt. In legal theory, there are two types of impossible attempts: absolutely and relatively impossible attempt. The essence of attempt lies in the actual risk for protected property, as well as in the scope and intensity of the demonstrated criminal intent to create a result or consequence. These are also the grounds for establishing criminal liability and punishing the perpetrator for committing this type of criminal offence. Attempt is one of the basic institutes in the general part of the penal law in Serbia and Montenegro (laid down in Article 19 of the Basic Criminal Code, the former Criminal Code of the FR Yugoslavia and Article 20 of the Criminal Code of the Republic of Montenegro) and other modern criminal codes. In this paper, the author has described and analyzed the theoretical, practical and comparative law aspects of attempt, focusing on the notion, concept, subject matter, characteristics, classification and legal nature of an attempt to commit-a criminal offence, in the light of legal solutions in the criminal law of Serbia and Montenegro, as well as the relation between an attempt and other stages in committing a criminal offence.

  • Issue Year: XLV/2004
  • Issue No: 45
  • Page Range: 117-139
  • Page Count: 23
  • Language: Serbian