Study On The Identification Of The Behavior Of Eliminating The Dangerous State Automatically In Potential Damage Offense

The emergence of potential damage offense is the last choice facing the risk society,but it brings a series of difficult problems to our criminal law theory and judicial practice.One of the most controversial issues is the identification of the behavior of eliminating the dangerous state automatically.potential damage offense refers to the crime that the dangerous behavior of the actor causes the dangerous state of the result of certain social harm stipulated by the law as a symbol of accomplishment.The behavior of eliminating the dangerous state automatically refers to the behavior of the actor to eliminate the dangerous state actively before the actual harm result occurs after the occurrence of the specific dangerous state.From the standpoint of worthless results,this paper holds that the essence of danger lies in the dangerous results caused by the infringement of legal interests.The evaluation of social harmfulness should include post-action behavior.The behavior of automatically eliminating the dangerous state of a potential damage offense objectively eliminates the "dangerous state",completely avoids the generation of real harmful results with serious social harmfulness,eliminates the influence brought by the previous behavior,and reduces the social harmfulness on the whole.With standard,put forward to perfect the current potential damage offenses should think the risk itself is a continuous period of time rather than just a point in time,risk only whether it constitutes a crime was fixed with one,when the dangerous state to achieve relatively independent and stability can determine whether a crime accomplishment.For the condition that the dangerous state is relatively independent and stable,we should first judge whether the actor has control over the dangerous state,that is,whether the dangerous state is out of the control of the actor.Secondly,whether the actor has carried out the action of automatically eliminating the dangerous state.Before the dangerous state is relatively independent and stable,the act of completely eliminating the dangerous state automatically loses the punishable because of completely eliminating the dangerous result,and should be considered innocent.The behavior that does not completely eliminate the dangerous state automatically should be considered as the crime suspension because it meets the constitutive requirements of the crime suspension.When the dangerous state is relatively independent and stable,if the behavior of the actor has caused a certain dangerous state,that is,the crime is accomplished,the behavior of the actor to eliminate the dangerous state after the event should be considered as the circumstances of sentencing.If the dangerous state caused by the act ofthe actor does not reach a specific dangerous state,the act of the actor shall be deemed as an attempted crime,but shall not be considered as a crime according to the proviso of article 13 of the criminal law under the circumstance that the circumstances of the act of the actor are obvious,slight and harmless.This paper is mainly divided into four parts,the main contents are as follows:The first part is the question.The identification of dangerous behavior of eliminating danger automatically.To solve the problems in the identification of dangerous behavior,including the concept of potential damage offense,the criterion of accomplishment and the judgment of abstract potential damage offense.This paper introduces the judicial practice cases,reflects on the status quo of the identification of the dangerous behavior of eliminating the dangerous state automatically,and makes a comprehensive case analysis.The second part introduces and analyzes the existing theories of the automatic elimination of dangerous behavior.This paper introduces the academic achievements of the identification of the dangerous behavior of eliminating the dangerous state automatically,and makes a detailed introduction and analysis of the main theories in the academic field,namely,the theory of accomplishment of potential damage offense,the theory of discontinuation of potential damage offense,the theory of discontinuation of real harm crime,the theory of "quasi-discontinuation of crime" and the theory of restorable crime of legal interest.The third part,the necessity of forgiveness of potential damage offense to eliminate the dangerous behavior automatically.The author makes a choice between the axiology of behavior and the axiology of outcome,and demonstrates the punishable nature of the behavior of eliminating the dangerous state automatically from the standpoint of the axiology of outcome.From the perspective of social harmfulness reduction,the principle of modesty and restraint of criminal law and the criminal policy of combining leniency and severity,this paper expounds the necessity of leniency for the automatic elimination of dangerous behavior.In the fourth part,the concrete identification idea of eliminating dangerous state behavior automatically for potential damage offense.We should improve the standard of accomplishment of potential damage offense,sort out the specific situations that may occur in judicial practice for the behavior of eliminating dangerous state automatically by potential damage offense,and explore the specific ways to make the behavior of eliminating dangerous state automatically by crime and light punishment.