A Study On The Dangerous Elements In The Context Of Risk Society

Observing our criminal legislation in recent years,we can find that our criminal law is advancing towards risk criminal law.Under the guidance of the orientation of safety precaution in risk criminal law,danger element is gradually missing in the provisions.The absence of danger has caused a discussion on the status of the elements of danger.However,the lack of danger in the provisions does not mean that danger loses its status as a constituent element,and the danger of legal interest remains the minimum requirement for the establishment of a crime.In this regard,this article will be divided into five parts to discuss the status of constitutive elements of danger and the danger of current criminal legislation:The first part explains the reality of danger element absence and the controversy caused,and makes clear the basic standpoint of this paper.Under the influence of the risky society,the promotion of our criminal law to the risky criminal law has triggered a controversial issue about the status of the constitutive elements of danger,which has led to the opposition between the theory of necessity of danger and the theory of non-danger.This paper insists on the necessity of danger.The second part refutes the theory of risk criminal law which negates the status of the constitutive elements of danger.The theory of risk criminal law attempts to take the risk society theory as the theoretical basis to explain the reality and rationality of danger losing its status of constitutive element.However,the misunderstanding of the theory of risk criminal law to the theory of risk society leads to its own problems,which can not reasonably explain that danger has lost its status as a constituent element.In the third part,the essence of the controversy over the constitutive elements of danger is the controversy over the theory of illegality.We should insist on erfolsunwert and adhere to the status of the constitutive elements of danger.The essence of the disputes over the constitutive elements of danger is the conflict between the two illegality grounds of handlungsunwert and erfolgsunwert.Based on the needs of the construction of a country ruled by law,the self-consistency of criminal law theory and the principle of human rights protection of the Constitution,the erfolgsunwert is still the basis of illegality that should be adhered to,and the danger of legal interests is still the essential component of crime.The fourth part explains the current criminal legislation based on erfolgsunwert and the status of the constitutive elements of the danger.The traditional theory of preparatory offense and assistant offense should be used to explain the danger of preparatory act and assistant act.It is believed that the danger of preparatory act is the destruction of the safe environment,and the danger of assistant act is subordinate to the perpetrating act.To identify the danger of dangerous acts,the construction of causality is used to identify the danger caused by the acts and to affirm the existence of danger of dangerous acts.The fifth part is to respond to other problems of danger identification.From the perspectives of accomplished model,establishment model and spiritualization of legal interests,the above-mentioned danger determination is not untenable.However,there are some problems in the legislative model of the specific provisions of the criminal law and the viewpoint of spiritualization of legal interests,which cannot deny the above-mentioned danger determination.