The Discussion On Limiting The Application Of Abstract Dangerous Crime

Abstract dangerous crime,as a legislative mode of protecting legal interest,is the result of criminal law responding to social changes.In this mode,criminal law no longer waits for the actual harm to happen,but actively turns to the identification and prevention of risk.The design of abstract dangerous crime can better meet the needs of national risk control and public safety expectations,but it is still an expansionary legislative mode in essence,with the inherent elements of penalty expansion.Under the background that abstract dangerous crime may be widely used,it is necessary to re-examine the basic connotation and rationally limit the applicable boundary.In view of this,this paper discusses from the following four aspects.The first chapter introduces doctrinal disputes on the definition and application of dangerous crime,and analyses the legislation or judicature of the typical charges,such as the crime of drunk driving and illegal possession of firearms,so as to draw out the controversial focus of the application,which is the nature and judgment of danger.The second chapter analyses the theoretical premise of limitation.That is to say,it is important to clarify what abstract dangerous crime is and why it is set up,which lay the foundation for exploring how to apply abstract dangerous crime.First of all,make clear the basic structure of abstract dangerous criminals.It sorts out the theoretical disputes about the nature of abstract danger,and after clarifying the differences between danger crime and concrete danger crime,it is clear that abstract danger belongs to consequence danger.Then,it discusses the legitimate basis of abstract dangerous crime.From the perspective of criminal dogmatic theology,the dualistic theory of valueless behavior is more suitable for the legislative mode than the theory of valueless result.From the perspective of criminal policy,it is an important measure of legal interest protection,which helps to achieve positive general prevention and reduce the burden of proof for investigation and public prosecution departments.The third chapter establishes the limiting path of abstract dangerous crime.First of all,it discusses the necessity of limiting application from the basis of violation of legal benefit and the doctrine of penal modesty.The core of limiting application is to examine dangerous crime in essence,and exclude the behavior that meets the constitutive requirements in form but is not worthy of criminal law intervention in essence from the criminal circle,so as to maintain the prudence and rationality of judicial application.Then it summarizes and analyses the applicable ways of shrinkage.The first way focuses on the judgment of the behavioral danger by constructing the standard of violating norms,which is based on the theory of valueless behavior.The second way analyses the constituent elements of abstract dangerous crime,focusing on the judgment of the result danger,including the restrictive way of "substantive interpretation of constituent elements" and "allowing the actor to testify to the contrary",based on the theory of valueless result.There is also a way that cannot be simply attributed to the theory of valueless behavior or valueless result,which is comprehensive judgment,realized by applying the proviso.Finally,on the premise that danger is result danger,it points out that the proviso is the guiding rule of interpreting constitutive elements rather than the basis of directly eliminating a charge,positions the abstract danger as an unwritten constitutive element,absorb the rationality of "allowing the actor to testify to the contrary",and finally establishes the limiting path of substantively interpreting constitutive elements.The fourth chapter discusses the application of the limiting path,which is to interpret constitutive elements substantively.Firstly,it summarizes abstract dangerous crime names in China,and divides it into general and special abstract dangerous crime according to the characteristics of dangerous behavior.The latter includes complicit dangerous crime and preparatory abstract dangerous crime.Then it discusses the specific steps of substantive interpretation.The first step is to clarify the specific legal interest protected,which requires a specific interpretation and prevent the conceptual legal interest and the legal interest with ambiguous contents,so as to solve the problem,that is the abstraction of collective legal interest.The second step is to substantively interpret the behavior elements and result elements.The former is based on the positive test of protecting legal interest,and infers the abstract danger from "the existence of legal facts sufficient to infringe legal interest".The latter is based on the reverse verification of freedom protection.The existence of act is a necessary rather than sufficient condition for the occurrence of result.Thus,it is significant to judge whether the presumption is false according to the objective situation,and to deny the establishment of the charge if there is no abstract danger.Then it analyses special dangerous crime.For the complicit abstract dangerous crime,some crime should follow the subordination of accomplice.For the preparatory abstract dangerous crime,there are subjective and objective relationships between some crime and specific subsequent crime.Although some crime has no such requirements,the object of action should have typical criminal significance.Finally,it analyses the cases mentioned in the first chapter.