當一個人想犯罪，可是該犯罪行為依普世常理觀之，不可能達成犯罪既遂階段，注定不能發生犯罪結果，並且與偶然運氣無關；針對不能未遂行為人，內心確信會達成犯罪既遂，但一般人卻皆不約而同的認為該犯罪行為不可能成功，對於這樣的落差刑法上該如何評價，國家刑罰權對其是否要處罰，涉及刑法第26條不能未遂之規定。
我國刑法第26條規定於未遂犯一章，本文首先要釐清其與未遂犯之關係，接著分析刑法第26條條文之要件，並且在刑法體系中，尋得其正確的位置及妥適之法律效果，期能維持刑法體系之一貫。
When a person wants to commit a crime, however it is impossible for the crime to reach the completion stage of the crime according to universal common sense. In this case, the criminal result is destined not to occur, and it has nothing to do with random luck. The person is convinced that the crime will be completed, but most people unanimously believe that the crime cannot be accomplished. How to evaluate this gap in criminal law and whether the state's penal power should punish it involves the provision of Article 26 of the Criminal Law that cannot attempt.
Article 26 of the Criminal Law of our country is stipulated in the chapter of attempted crimes. This article firstly clarifies its relationship with attempted crimes, then analyzes the essentials of Article 26 of the Criminal Law, and lastly finds its correct position and appropriate legal consequences in the criminal law system. It is expected that the essence of the legal system can be maintained.
