On Judgment Of Danger In Abstract Dangerous Criminal

Based on the need to control risks and ensure safety in a risky society,abstract dangerous offenders have been widely favored by legislators due to their preventive function of early intervention and the convenience of judicial certification.In recent years,they have also accounted for more and more of the total crime volume.proportion.Although abstract dangerous offenses existed before the risk society theory was popular,it is an indisputable fact that the "East Wind" of the risk criminal law theory has become a "fire prairie fire" among individual charges.This situation is largely due to the strategy of formal judgement of abstract danger in judicial practice,which has led to the conviction of the situation that "formally conforms to the constitutive requirements but actually has no abstract danger" that has been criticized in theory.Although in theory many scholars have proposed substantive judgments on abstract dangers,they lack specific judgment standards and rules.This article focuses on the proposition of judging the danger of abstract dangerous offenses in the criminal law.First,it clarifies the concept of abstract dangerous offenses,explains the status quo of judicial application of abstract dangerous offenses,and then analyzes the basic attributes,system status,and legal benefits of abstract dangerous offenses.,And then expand on how to specifically judge abstract dangers,and finally put forward opinions on the two ways of restricting abstract dangerous crimes that are more intensely discussed in China.Based on the above ideas,the main body of this article is divided into the following four chapters:The first chapter is an overview of abstract dangerous criminals.Abstract dangerous criminals first appeared in order to maintain public order,which can be seen from the regulations in the criminal codes of various countries in the middle and late 19 th century and early 20 th century.However,since modern society,there has been a phenomenon in which the uncertain risk of human decision-making invades the field of daily life,the consequences of which are serious and the causal process is difficult to identify,which puts forward more stringent requirements on the criminal law.Based on the need for active general prevention and the requirement for early protection of legal interests,abstract dangerous offenders have found a theoretical foundation that is more suitable for their characteristics,and have become a powerful weapon in modern society to eliminate people’s sense of anxiety and fear,and to ensure safety.Based on the role that the definition should play and the inadequacies of the basis of punishment,the definition of abstract dangerous offense should be explained from the perspective of constituent elements as at the beginning of the study.In judicial practice,the identification of abstract dangerous offenses emphasizes formal standards,and lacks substantive examination of the crime.Even when there is a conflict between the two,they often only use the light of sentencing to alleviate the contradiction between the two.This roundabout way is not conducive to the correct identification of abstract dangerous criminals,so the proposition of abstract dangerous judgment is helpful to correct the tendency of emphasizing form and neglecting substance in practice.The second chapter is the determination of the premise of abstract dangerous judgment.Although there are many theoretical viewpoints explaining the rationality of abstract dangerous offenses in criminal law,only two traditional viewpoints explain the legitimacy from the standpoint of the basic attributes of abstract dangerous offenses.Taking abstract danger as a legislative reason or an element of violation of the law is not allowed to judge whether there is abstract danger in a case.In fact,abstract danger offenses have been equated with formal offenses.However,thinking of abstract danger as the reason for the inadequate criminal law punishment of behavioral attributes,but also goes the old way of the general danger theory.Therefore,it should be considered that the abstract danger is the result element among the constituent elements,so that the causal relationship between the behavior and the result can be explained,and the scope of punishment can be limited in judicial judgment.In addition,the super-individual legal interests protected by the first level of abstract dangerous criminals only illustrate the extent to which the abstract collective legal interests are infringed,and whether there is an abstract danger of infringement of the second-level personal legal interests behind it is the criterion for the ultimate establishment of the crime.The third chapter is the concrete development of abstract dangerous judgment.The judgment object of abstract danger is not limited to the dangerous state itself,but also includes the danger of behavior.When identifying the risk of behavior,the material used is the actual situation at the time of the behavior,and the standard adopted is the standard of ordinary people in society,and the formal judgment is made from a pre-existing standpoint;when judging the abstract dangerous result,the material used is determined after the behavior is implemented.The circumstances of the case and the additional circumstances known to the perpetrator are based on the scientific standard of ordinary people,and substantive judgments are made from the standpoint of hindsight.The dangerousness of the behavior reflects the protection of the collective legal interests of the abstract dangerous offender,and the abstract dangerous result reflects the protection of the personal legal interests of the criminal.After the behavior conforms to the typological constituent elements,the key to the substantive judgment lies in whether the behavior can actually cause the legal interest infringement and whether other conditions have the possibility of appearing,so as to determine the minimum possibility of the legal interest infringement.Only in this way can people’s legitimate rights and interests be protected to the greatest extent in the process of judicial judgment,and the scope of punishment for abstract dangerous criminals can be limited.The fourth chapter is the crime path of abstract danger reduction.The two-level judgment,which combines formal judgment and substantive judgment,not only reflects the characteristics of the double-layer legal interest structure of the protection of abstract dangerous crimes,but also avoids the transfer of the burden of proof caused by the theory of "counter-evidence" to the greatest extent.However,in our judicial practice,abstract dangerous offenses are mostly identified by presumption.In theory,there is controversy as to whether reproof can be permitted.The view of permitting counter-evidence actually limits the scope of punishment,and at the same time reflects the side that is beneficial to the perpetrator,so the viewpoint of permitting counter-evidence is more worthy of promotion.In addition,the "province" can be applied to abstract dangerous offenders and then convicted,there are also two factions of positive and negative views.my country adopts a binary system of illegality and crime,and the content before the "province" clause explains the establishment of a crime from a pros and cons angle.Therefore,the "province" as an abstract danger exists but is the cause of the crime when it is minor.There is a theoretical foundation.