Judicial Application Of The Crime Of Throwing Objects From A Height

With the rapid development of China’s economy,the incidence of throwing objects from a height is also on the rise.Initially,the act of throwing objects from height was only regulated by means of civil law,but with the occurrence of many serious cases of throwing objects from height,it became clear that civil regulation could no longer fully deal with such cases,and more and more people called for throwing objects from height to be regulated by means of criminal law,so that the thrower of objects from height would be subject to criminal punishment.Against this background,the Criminal Law Amendment(Eleventh)Act on the offence of throwing objects from a height was created.The new offence of throwing objects from a height is necessary to improve the criminal law system and to close the loopholes in the legal regulation of throwing objects from a height,which is conducive to the accurate handling of throwing objects from a height cases by the judicial authorities.After the incrimination of throwing objects from a height,it is important to distinguish exactly what law applies to the act.If the perpetrator of throwing objects from a height cannot be identified,criminal law cannot be applied,but civil law can be considered;if the act of throwing objects from a height does not cause injury or property damage,civil law usually cannot be applied,but can consider whether to apply administrative or criminal law;if the act of throwing objects from a height not only produces damage consequences,and can identify the specific perpetrator,at this time may apply both civil and criminal law.On the basis of affirming the need for the independent incrimination of the offence of throwing objects from a height,the conceptual scope of the protection of legal interests and the elements of the act should be further clarified.In view of the change in attitude of the legislature and the fact that throwing objects from a height is generally unlikely to endanger public safety,it is more reasonable to identify the protection of legal interests as social public order;The strict interpretation of the elements of conduct,such as "building or other high altitude","throwing" and "object",will ensure the correct application of the offence of throwing objects from height.This article argues that "aerial" should be defined as a height of two meters or more;"throwing" includes throwing objects down with the help of external forces;"articles" should be defined in terms of the danger of the object itself,the role it plays,and the place where it is thrown;The "object" should be judged by the dangerous of the object itself,the role it plays,the place where it is thrown,its location and the specific circumstances of the case,and whether it is capable of disturbing public order.Although the creation of the offence of throwing objects from a height has played an important role in guiding the judiciary in handling cases of throwing objects from a height,there are still some dilemmas in its judicial application,which should be analyzed and a corresponding path of improvement should be proposed.Firstly,the standard of "aggravating circumstances" is of great significance in determining whether and what kind of law has been violated by the act of throwing objects from a height,but there is currently a lack of corresponding judicial interpretation.This article believes that the "seriousness of the circumstances" standard can only be the objective aspects of the content,should be judged from the nature of the throwing behavior and throwing behavior of the damage consequences,mainly including throwing weight,volume of large items,throwing time and place crowded,repeatedly throwing objects aloft,resulting in minor injuries or more harmful results and other circumstances.Secondly,the difficulty of judicial proof in cases of throwing objects from height also brings obstacles to the application of the crime.To address this issue,this paper argues that the role of public security organs,property service enterprises and communities should be activated to fix the evidence of the offence of throwing objects from a height by making full use of circumstantial evidence of the case,empowering big data technology tools and setting up grid officers in the community.Once again,as the offence of throwing objects from a height can easily compete with other crimes,the competing offence present complex features.This article argues that an accurate grasp of the nature of the offence of throwing objects from a height and the protection of legal interests can help clarify the competing relationships and evaluate the act of throwing objects from a height in its entirety.Finally,the case of children throwing objects from height should also be taken seriously,and there should not be a solid idea that a child does not constitute a criminal offence.This article argues that cases of children throwing objects from height can be simply divided into those that are simple and those that are exploited by others.In simple child throwing cases,the child is the active perpetrator,and if the guardian is able to stop it but fails to do so,the guardian constitutes a crime of omission.In the case of throwing from a height by others,the child’s role is weakened and he or she is instigated or instructed by the guardian or others to commit the throwing.If the child is capable of distinguishing between right and wrong,the guardian or other person is an instigator of the offence of throwing objects from a height,and if not,the guardian or other person is an indirect perpetrator of the offence of throwing objects from a height.