Research On The Problem Of Abstract Dangerous Crime

Under the exaggeration of the risk criminal law theory and the positive criminal law concept,our country’s criminal law has become more active,among which "the increase of abstract dangerous crimes is an indisputable fact".The legislative mode of abstract dangerous crime is mainly set up in the fields of endangering public safety,food and drug safety,disturbing public health and destroying the environment in the criminal law of our country.The reasons for adding abstract dangerous crimes are as follows: one is to avoid more serious consequences of actual harm,and the other is to effectively reduce the difficulty of judicial proof.In the process of academic research and the practice of legislation and justice,there are still many controversial points about abstract dangerous criminals.Therefore,this article intends to analyze the abstract dangerous crime from five parts: the ontology,the background,the relationship,the stop form and the restriction level,in order to further deepen the theoretical discussion of the abstract dangerous crime,and at the same time,it is hoped that it can serve the legislative and judicial practice activities.The first chapter mainly researches from the perspective of the ontology of abstract dangerous crime.Abstract dangerous crime is a crime pattern formed based on the concept of danger,which originates from the protection needs of public interests.Considering that public legal interests involve the personal and property safety of many people,it is very easy to form public incidents in the event of an emergency.Therefore,such a legislative form is used to protect in advance,so as to realize the continuity and integrity of legal interests protection.In order to accurately respond to the changes in the risk society,the extension of abstract dangerous criminals is constantly being expanded.During the period of social transformation,positive law has responded one by one to many emerging problems in society,such as cybercrime,environmental crime,economic crime,gene editing crime,and other emerging crimes.Crime,criminal law tentacles have been extended.In addition,with the popularization of the active criminal legislation concept and the continuous evolution of criminal legislation in the recent period,it can be seen that abstract dangerous criminals such as the crime of throwing objects from high altitude and the crime of obstructing safe driving are constantly emerging in the criminal norms,and the social defense function of criminal law can be fully activated.The historical development of abstract dangerous crimes reflects the social transformation and the changes of the times.The positive law often needs to be discussed in the context of the specific era before it has precise meaning.The author believes that the abstract dangerous crime refers to the criminal form that conforms to the basic crime because of the general danger to the legal interest due to the specific behavior.The concept of danger in our country’s criminal law should be a combination of subjective and objective concepts of danger,that is,danger is not only a state of objective existence,but also a judgment based on subjective cognition.The abstract danger in the abstract danger crime,even if it is less urgent than the specific danger,can still clearly indicate the possibility of legal interests infringement of the behavior.If it is not stopped,this danger will be transformed into actual harm.Prophecy,the danger in abstract danger is real danger.The punishability of abstract danger is mainly based on the theory of the worthlessness of behavior,and the illegal essence of the perpetrator is manifested on the basic criminal elements that are subjective and objective.Negligence crime takes the illegal result as its logical starting point,which naturally deviates from the normative structure of negligent and dangerous crimes.The "dangerous state" of negligent and dangerous crimes is only the harmful result of the normative sense,and the "dangerous state" of negligent and dangerous crimes cannot lead to actual harm.As a result,the guilty form of the negligent dangerous act is intentional rather than negligent,and business negligence is not a reason to set up negligent danger.In addition,there is no legislative example of negligent dangerous offense in my country’s criminal law,and the recognition of negligent and dangerous offense legislation will lead to a series of difficulties in judicial application.The second chapter mainly researches from the perspective of the background theory of abstract dangerous crime.Since Baker put forward the concept of "risk society",this theory has gradually been accepted by many scholars,and interpreted the theory from different angles.The risk society theory believes that the "risk" in a risk society has high universality and high dissemination,objectively affects a wide range,and also has the characteristics of intergenerational in time and space.Different from traditional risks,modern risks are more hidden and difficult to be perceived and detected,so they have great contingency.The risk society theory has profoundly affected the changes of the concept of legal interest,the principle of liability and the concept of the traditional criminal law theory.The expansion and unpredictability of the current social "risk" determines that the traditional criminal law theory should be reformed.The theory of "risk criminal law" was born.The so-called "risk criminal law" is to actively regulate the risks caused by the perpetrator’s violation of a legal norm,and protect legal interests by intervening in advance.How to use criminal law to prevent and control risks in the process of social development has become the key to the problem,so abstract dangerous criminals have become the favored object of legislators.The value of abstract dangerous criminals is more reflected in the maintenance of safety rather than the protection of legal interests,which is the concentrated expression of the concept of positive prevention in criminal law,and it is also the active action of criminal law in dealing with risk society.By studying the theoretical development of abstract dangerous crimes in German and Japanese criminal law,it can be found that in the context of our country’s criminal legislation,abstract danger should not be judged at all,but should be reviewed to a certain extent.The distinction of all types of crimes must always revolve around the concept of legal interests,so as to ensure that the relevant concepts have practical significance and can play a real role in judicial practice.Compared with the legislative settings of countries such as Germany and Japan on abstract dangerous crimes,the current number of legislation on abstract dangerous crimes in my country’s criminal law is much smaller.Under the dual criminal legislative structure of "qualitative + quantitative" in my country,most of the crimes in the criminal law belong to the actual offender.Whether the actual harm has occurred and the severity of the actual harm are the judgments of general illegal acts and criminal offenses.important criteria.The criminal law amendment is the main way to amend the criminal law in our country.The release of eleven criminal law amendments in succession in our country has greatly expanded the scope of the setting of abstract dangerous criminals in our criminal legislation,and has profoundly affected the interpretation and changes of its internal structure.Abstract dangerous offenses in our criminal law have the following characteristics.First,the setting of abstract dangerous offenses in our criminal legislation reflects the collective nature of protecting legal interests and beyond the scope of individuals.Secondly,the behavior object of super-personal legal interests protected by abstract dangerous criminals set up in my country’s criminal law is likely to cause potentially immeasurable harmful consequences.Finally,my country’s criminal law does not clearly stipulate that all abstract dangerous offenders have corresponding real offenders.In the process of previous revisions of the law,the number of abstract dangerous criminals has been increasing.The background is that the overall criminal law provisions are increasing,but the added part of abstract dangerous criminals shows unique characteristics.The author tries to explore the new trend of the development of abstract dangerous criminals through empirical analysis of several typical abstract dangerous criminals added by the Criminal Law Amendment(Eleven).The third chapter mainly researches from the perspective of the relational theory of abstract dangerous criminals.The further division of dangerous crime has positive significance.Abstract dangerous crime has its unique normative structure and theoretical and practical value.We cannot ignore the independence of abstract danger.It belongs to one of the different forms of danger just like concrete danger.In the era of big data,risks are constantly evolving due to the iterative update of information technology.Considering that people live in this risky society,it is necessary to accurately distinguish between these two types of dangerous criminals,so as to better maintain the safety of citizens.And realize the important task of criminal law to protect legal interests.Compared with specific dangerous criminals,abstract dangerous criminals have differences in the burden of proof,dangerous state and many other contents.The core difference lies in the degree of "abstraction" of the constituent elements in legislation,and judges’ criteria for dangerous review when determining crimes.,the content is different.dangerous crime takes the formation of abstract danger as the benchmark content,and focuses on how to interpret the abstract dangerous concept,while behavioral crime takes the constitutive element behavior as the benchmark content to decide whether to commit a crime or not,and has nothing to do with the result.It can be seen that the key difference between the two is the presence or absence of abstract danger as a result.As one of the manifestations of wrongful results,the judgment of abstract danger is also more difficult.The danger in the criminal law should include the danger of the behavior and the danger of the result,while the danger in the abstract dangerous crime refers to the danger of the result,that is,the possibility of actual legal interest infringement.The establishment of abstract dangerous crimes requires the appearance of different types of dangers.Actions do not always bring danger.This is the essential difference between abstract dangerous crimes and behavioral crimes.The danger in behavioral crimes is the danger that does not involve consequences.The legislative setting of abstract dangerous crime does not appear by chance,but emerges at the historic moment based on the needs of social reality and the orientation of criminal policy.This legislative paradigm is rational and necessary.In today’s society,citizens’ needs for a sense of security are greatly increased,and the establishment of abstract dangerous criminals is also for the purpose of protecting citizens’ sense of security.The establishment of abstract dangerous crime is rational,has its own unique theoretical value,normative structure,academic status,and is not a vassal of other crime types.We need to clarify the characteristic outline of the abstract dangerous crime,and try our best to avoid the situation that the abstract dangerous crime is indistinguishable from other crime types in substance.The fourth chapter mainly researches from the perspective of stop modal theory of abstract dangerous crime.The constituent elements of our country’s criminal law are based on the accomplished model of a single offense.The abstract dangerous offense is similar to other types of crimes,and there are also incomplete forms of crime.When the abstract dangerous offense satisfies the appropriateness of the constituent elements,it constitutes a consummated crime.The author agrees with the compromise theory put forward by taking abstract dangerous state as the accomplished standard of abstract dangerous crime.Abstract dangerous crime has both completed and incomplete forms.The author believes that the theory of abstract dangerous state still has certain theoretical value and theoretical status,and the "abstract dangerous state theory" is appropriate as a criterion for judging abstract dangerous criminals.dangerous criminals have the possibility of criminal preparation.Whether abstract dangerous criminals have preparations and whether they need to be punished can be examined from the perspective of comparative law.For abstract dangerous offenders who violate major legal interests,we should consider their preparatory acts criminally punishable.As to whether there is still room for the establishment of criminal suspension after the emergence of the abstract dangerous state,the academic circles mainly have disputes over the theory of abstract dangerous crime accomplished,abstract dangerous crime suspension theory,and actual crime suspension theory,and there are different explanation reasons.The author basically adopts the view that the crime is accomplished,and does not recognize the possibility of the crime being suspended after the crime is accomplished.In fact,it is not common for the perpetrator to automatically remove the abstract dangerous state after the completion of the abstract dangerous crime.Even if it occurs,the judicial person can completely solve it by applying the discretionary sentencing circumstances.Abstract dangerous criminals should have a state of attempted crime.We need to look at the problem from a developmental perspective.Abstract dangerous state is a staged state in the criminal process,which can be changed with the deepening of criminal behavior.If the criminal behavior is due to various reasons And to stop,it is entirely possible to stop in the unfinished state.The fifth chapter mainly researches from the perspective of the restriction theory of abstract dangerous offenders.Under the exaggeration of the risk criminal law theory and the positive criminal law concept,my country’s criminal law has become more active,among which "the increase of abstract dangerous crimes is an indisputable fact".The preposition and expansion of the scope of punishment has its practical rationality.However,the active expansion of criminal law,especially the addition of abstract dangerous criminals,is by no means unlimited.While extending the scope of criminal law punishment,it is also necessary to take into account basic values?such as human rights protection,public freedom,and justice in punishment,as well as specific issues such as the connection between criminal law and other departmental laws,and the effect of criminal law regulation.The legalization of crime and punishment,infringement of legal interests and responsibility doctrine are the embodiment of the principle of modesty in criminal law.However,the generalization of the abstract dangerous crime setting is against the modesty of criminal law from the abstract level,and it is easy to violate the above three basic principles of criminal law from the perspective of specific application effect.Abstract dangerous crime legislation may also destroy the parallel mechanism of "execution" and lead to the judicial dilemma of "execution" connection.The over-expanded Legislative Council promotes the thinking of "criminal law is omnipotent",and its true efficacy in governing society is also questionable.Therefore,what is needed at the moment is to impose dual legislative and judicial restrictions on the scope of punishment for abstract dangerous offenders.The generalization of abstract dangerous criminals is a concrete manifestation of the positive criminal legislation concept.In order to reduce the negative effects of this legislative model and balance the relationship between legal interest protection and human rights protection,legislation itself needs to be restrained.When legislators consider using criminal law to manage social risks,they should first conduct a scientific review of the nature of "risks".The point of view that directly deduces the rationality of the risk criminal law model based on the policy needs of governance risk,not only easily destroys the legitimate foundation of criminal legislation,but also leads to the generalization of criminal law in social life,which is not conducive to the maintenance of criminal law authority.When legislators set up abstract dangerous crimes,while considering the rank of legal interests,they also need to pay attention to the priority of the distance between behavior and legal interests.By distinguishing the "priorities" of protecting legal interests,the function of legal interests to guide the legislation of abstract dangerous crimes can be better played,so that the disorderly expansion of abstract dangerous crimes can be more effectively restricted at the legislative level.In the criminal legislation of abstract dangerous offenders,it is also necessary to pay attention to the rational application of the principle of proportionality.In terms of the judicial restriction of abstract dangerous crimes,we should make full use of the "provoking" function of the "province" in Article 13 of my country’s "Criminal Law",and through substantive interpretation,the form meets the elements of the crime,but the substance does not meet the penalty standard.to criminalize the behavior of an abstract dangerous offender not only in form but also in substance.The criminal law should be actively encouraged to protect legal interests in advance by setting up abstract dangerous crimes.However,the prepositioning of criminal law cannot deviate from the core of humanism.The expansion of the scope of protection does not mean the transformation of its core.The setting of abstract dangerous crimes should still adhere to the humanistic standpoint.Moderate expansion.In the process of identifying abstract dangerous offenders,it is reasonable to reserve the existence space for the theory of rebuttal.The objective reality that the legal interests are damaged cannot be realized,which provides the possibility for the perpetrator to commit a crime.The theory of counter-evidence is actually a reflection on the "dangerous" fiction theory in the traditional abstract dangerous crime.