Basically, there are three basic theories in criminalizing attempts, including:

  1. Subjective Theory, namely that the punishability of an attempt is based on the existence of the perpetrator's intention/will/inner attitude to commit an act or cause a consequence prohibited by law.
  2. Objective Theory, namely that the punishability of an attempt is based on the act committed endangering the public interest protected by law.
  3. Integration/Mixed Theory, namely that the punishability of an attempt is based on the perpetrator's dangerous inner attitude and the dangerous nature of the act committed.

Elements of Attempt

According to the provisions of Article 53 paragraph (1) of the Criminal Code, an attempt in criminal law consists of intent, commencement of execution, and non-completion of the act not due to one's own will. The scope and differences of opinion among legal scholars regarding these three elements will be described below.

Existence of intent

Intention or voornemen is defined by Van Hammel and Simons as intent, while according to Vos, intent is specifically defined as deliberate with intent (dolus directus). On the other hand, Hoge Raad in Arrest-he seemed inclined to define intent as general intent. This is evident in two decisions with the following case positions.

A boards a train. In the middle of the journey, the train officer checks each passenger's ticket, but A refuses and kicks the officer. If the officer had not held onto the pole, he would have fallen and died. Thus, Hoge Raad decided that A had committed attempted murder with a possible intent (Hoge Raad Arrest 12-3-1943).

In addition to the above case, there is also Hoge Raad Arrest about the very famous poisoned tart. In that case, the perpetrator understood that A's intention to kill B by sending a poisoned tart to his house might kill B's other family members because they lived in the same house and ate the tart. Against A, if B does not die, he can be charged with attempted murder with the following description.

According to Vos, A can be charged with attempted premeditated murder because the perpetrator's intention is to kill B by sending a poisoned tart, but it is not carried out. The nature of the intent in this crime is dolus directus.

On the other hand, according to Van Hammel and Simons, in addition to attempted premeditated murder against B, A also committed attempted murder against B's other family members. This opinion is based on the argument that B's family members who live in the same house as B might eat the poisoned tart. The nature of the intent in the second crime is dolus eventualis.