Study On The Dilemma Of The Heavier Sentencing For Throwing Objects At Height Crime And Its Countermeasures

Enacted in November 2019,the Supreme People’s Court on the properly in accordance with the opinions of high altitude parabolic,falling objects cases(25 [2019] of the state)(hereinafter referred to as "opinions"),article 5 of the second paragraph: "serious injury or death on people or resulting in serious losses to public or private property,shall be punished according to the provisions of paragraph 1 of article one hundred and fifteen of the criminal law." Article 6 stipulates: "under any of the following circumstances,a heavier punishment shall be given,and generally no probation shall be applied:(2)if the execution continues after being dissuaded;(3)having been subjected to criminal punishment or administrative punishment before being imposed;(4)in a crowded place;(5)other serious circumstances." The above provisions provide a clear basis for the accurate determination of the crime of throwing objects from high altitude and the severe punishment of throwing objects from high altitude in accordance with the law,and solve the long-standing practical problems of the lack of legislative basis and judgment rules in the fight against throwing objects from high altitude and falling objects.However,it is found in the article that the content is abstract,and there are still many points worthy of discussion in judicial practice,which are mainly reflected in the following three questions: first,how to define "multiple implementation" quantitatively,and whether there is a clear time limit for "multiple implementation" ? Second,how to qualitatively define "other serious circumstances" and whether to consider the technical identification contents such as the height of parabolic position,the mass,hardness and volume of the object.Third,how to grasp the specific standard of "significant loss".After empirical study of the court’s judgment cases,it is found that these three questions are the basic propositions in the punishment of high-altitude throwing object crime,the most controversial issues between the prosecution and defense,and also the key parts of the judgment result that cannot be beyond reasonable doubt.To this,the author to these three questions as the research object,based on the dilemma for practice that problem oriented,with case analysis,empirical analysis,comparative analysis and other research methods,focus on three problems in the interpretation of high altitude parabolic crime shall be given heavier punishment for the plight of the manifestation,the dilemma for formed,finally put forward from the judicial operation difficulties of concrete path,and the supplementary Suggestions to perfect the legislation.This paper consists of three parts: introduction,body and conclusion.The body consists of four parts:1.Definition and theoretical elaboration of concepts related to high-altitude throwing and heavy sentencing.Firstly,based on the existing studies,the author defines the concept of heavier sentencing.Three viewpoints of heavier sentencing are expounded in China and theirown views are put forward.Secondly,it explains the related theories of heavier sentencing,and puts forward its own views from two aspects,namely,statutory emphasis and discretionary emphasis,while foreign countries analyze three kinds of sentencing theories in the United States.Again,based on the law,from the perspective of the civil and criminal punishment concept,high altitude parabolic people based on law and court two kinds of patterns,from full civil tort and punishment people mixed two aspects analysis of high altitude parabolic people deal with problems,finally,judging from substantial judgment and forms two kinds of theory,analysis of high altitude parabolic civil boundary problem,and put forward their views.Ii.The predicament of the application of heavier punishment for throwing objects from height crime and the analysis of its causes.First of all,it analyzes and studies the practice of heavier sentencing in relevant domestic criminal cases,focusing on the investigation of criminal cases that have been adjudicated,and sorts out the dilemma of heavier sentencing.Secondly,it analyzes the disputes caused by the heavy sentencing dilemma in the stage of investigation,prosecution and trial.Finally,the author mainly analyzes the reasons for the existence of the heavy sentencing dilemma from the perspective of the subjective and objective theory of criminal law,the abstraction of criminal law norms and the normative interpretation of justice.Thirdly,the choice of the way to deal with the heavy sentencing dilemma of throwing objects from height crime.First,it analyzes the understanding of "multiple times" from two aspects of moral norms and legal norms,and analyzes the term scope of "multiple times" from different theoretical theories and theories,and puts forward the personal opinion of "multiple times" interpretation.Secondly,"other serious circumstances" is a bottom-line provision,which is a substantive analysis of the application of "other serious circumstances" in judicial practice from the theoretical analysis of the same interpretation rules and the relevant opinions on related cases and other crimes of throwing objects from height.Thirdly,the determination of the specific amount of "major loss" is expounded from the two aspects of legal norms and standard differences,and the scope of major loss is analyzed to put forward my own views.Suggestions on legislation to improve the punishment for the crime of throwing objects from high altitude.Firstly,draw lessons from the legislative experience and judicial judgment experience of recidivism in the United States.It is suggested that "more than three times within two years" should be defined as "more than three times within two years".Secondly,referring to the legislative experience of "serious circumstances" in the Notes to the United States Code,it is suggested that the application of "other serious circumstances" in article 6,paragraph 5,of the Opinion can be considered from the aspects of the type,quantity,quality,volume size,hardness and height of the high altitude of the projectile.Finally,it is suggestedthat the amount standard of the crime of intentional destruction of property should be used for reference.