| How to judge Danger in criminal sense is one of the most difficult issuesin criminal theories. Scholars of civil law system have been discussing a lot inthis field for over one hundred year and different viewpoints have come intobeing. However in our country, scholars didn't attach importantce to this topic.After evaluating the main viewpoints about danger theory, this article pointsout the shortcomings in these viewpoints and summarizes the new method tojudge danger in criminal sense. The new method pays much attention to factsof acts. There are several steps in judging criminal danger. Firstly, we shouldknow which kind of legal rights the actor has imperiled or will violate.Secondly, both the prosecuting attorneys and the actor should select relatedfacts on acts as much as possible. Thirdly, the judger should decide whichkind of facts are more important. Considering the acceptant possibility bycommon people, the judger should decide how to abstract the above facts.How to evaluate the importance of facts lies on which kind of facts it belongsto. After these steps, if we conclude that the act is dangerous, this conclusiondoesn't mean that the actor should be punished. If actor realizes the dangerand expect the danger even the result to happen or just let it alone, even theactor didn't realize the details of his acts, then punishment will actualize. Thedanger theory is not only hard to manage, but also relates to some essentialtheories of law. This article points out three pairs of essential theories ofcriminal law. There exist rivalries between common justice and particularjustice, subjectivism and objectivism, result liability and liability creed. Thisarticle points out the judgement in this method should be an essential one, nota formal one. And the verdicts made by judgers in our country should be moredetailed and academic, which then could show the process of essentialjudgement. |
