Browsing by Author "Aksoy, Pervin"

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    Türk Ceza Hukuku'nda suça teşebbüs
    (Sosyal Bilimler Enstitüsü, 2007) Aksoy, Pervin; Özen, Muharrem; Hukuk
    Attempt to crime is one of the disputatious institutions in the New Turkish Criminal Code. The debates arise either structure and understanding of the attempt or structure of each crimes. Before the new code, the article which is related to attempt, had some complex problems, but after the new change, it has more confused questions. So it is very difficult to get some concrete solutions. Therefore, the aim of our study focus on the articles of attempt in the New Turkish Criminal Code. Because, the attempt rules have a different content with new code. In our opinion, the new articles cannot solve the problems of the structure of attempt. Also it arises the new questions. The notion of attempt is collected under one article in the new code. The old code had two hypothesis of attempt; the acts of author cannot be completed or the results of crimes cannot be obtained. Also the other article includes the volunteer abandon which author acts for preventing to commit crimes in the way of it (iter criminis). Under this article, there are two hypothesis; author gives up the idea of completing the act or commiting the crimes. The study includes in three parts. In the first part, it is examined on the way to commit crime, the legal characteristic of it and the reason of punishment. The attempt is a combination of two rules which are main and secondary characteristics. But it is not attempt crime, on the contrary it has a complementary feauture. So it is possible to attempt to a crime. The principle of legality requires that if a crime is punished, it has to place in the criminal code. So in the case of attempt to crime, it is punished a non-complete crime because of the rule of attempt. The reason of punishment bases on the objective opinions. Because the state does not assent to commit antisocial act which violates the protected benefits. Attempt to crime has two elements; actus reus and mens rea. Actus reus may be any act or omission which is provided with the intent of committing offences and goes beyond mere preperation. The actus reus of attempt are that the act has to start with convenient behaviours which are directed towards to crime but author cannot complete the crime which is aimed. The mens rea is an intention to commit a crime. In the caseof attempt to crime, it is important to arise the volition of commiting crime as concrete in the external world. However, the problem of attempt appear on the element of actus reus. Directly to start behaving is an important notion. Because the phrase which has been filled in the meaning with other expressions, has a frame rule. There is a similar expression in italian criminal code. The phrase is ?no doubts of action?. This criterian also constitute a measurement between preparatory and act. In our opinion, the convenient behaviours have a wide meaning which include the suitable tools. The notion of convenient is based on the objective views which are defended concerning the offences of the protected benefits. The judges evaluate the notion of convenient acts in the methods of ex ante. This means that, the judges go to the past period that crimes were occurred. They have to take into consideration the concrete properties of the case, also the special knowledge of author about the way of commiting crimes. The complete crime cannot be finished by the authors in two ways: - It is not possible to complete the acts because of the reasons that occur out of author. - It is not possible to commit a crime because of the incomplete result. These hypothesis constitute the forms of attempt to crimes. However, the author can stop committing crimes. The articles of attempt in the criminal code include volunteer will. Author can act voluntarily and stop the acts or prevent the results. On the other hand, in the way of crime, author causes different levels volutions on the protected benefits. This means that, it is impossible to collect these hypothesis under one article. Because, the degree of violations is different and in the first hypothesis it is lighter than second hypothesis. For this reason, the punishment has to be different. Also the notion of attempt requires an intended result. Author has to know and desire the acts and their results. So it is possible to say that, the attempt to crime is carried out only in the intentional crime. There are many kinds of crimes which are impossible to attempt them because of taking into consideration their structures. For example; the crimes that may be carried out with the recklesness, the crimes that may include only omission action and probable intention, the crimes of dangerous and with the condition of punishing. But there is an important point, if the action has a development (process), the attempt may happen because of the divisibility action.