On The Judgment Of Danger In Specific Dangerous Offence

Under the background of risk society,potential damage offence is widely established as early protection of legal interests,and how to judge the danger of potential damage offence is a major problem in criminal law theory and judicial practice.As an important branch of potential damage offence,the identification of specific damage is of great significance for distinguishing between potential damage offence and actual damage offence,as well as actual potential damage offence and abstract potential damage offence.In the study of the specific damage judgment,this paper firstly clarifies the premise of the specific damage judgment.Secondly,on this basis,this paper introduces and comments on various theories of impossibility with the cases,use for reference the methods and principles of forming specific damage judgments.Finally,combined with the crime of impairing safe driving and the crime of obstructing the prevention and treatment of infectious diseases are applied to the identification framework of specific damage judgments.The actual danger in the actual potential damage offence refers to the realistic possibility that the legal interest protected by the criminal law caused by the actual dangerous behavior will be infringed urgently.As the core element of actual potential damage offence.actual danger is not only the legislative basis for actual potential damage offence,but also reveals the nature of actual potential damage offence important meaning.Regarding the nature of actual potential damage offence,there has always been a disagreement between behavioral dangers and resultant dangers,and some commentators regard it as a state of danger.This paper chooses to stand on the standpoint of the worthlessness of the result between the worthlessness of the behavior and the worthlessness of the result,and believes that the actual danger of the actual potential damage offence under the guidance of the theory of legal interests should be the danger of the result nature,which needs to be determined in judicial practice based on the specific circumstances of the case.There has been no consensus on the judgment of actual dangers.The theory of criminal law in civil law is based on the dispute between subjectivism and objectivism,and has formed various theories on inadmissibility.On the basis of evaluating the similarities and differences of various theories,this paper draws on the doctrine of non-offense in a targeted manner,explores the judgment method of actual danger around the focus of the problem in the judgment of danger,and draws the judgment principle of actual danger,that is,under the position of objectivism,the objectively existing facts rather than the facts in subjective cognition are used as judgment materials,but it does not advocate abstracting the objective facts,taking the scientific and rational causal law as the judgment standard instead of the actor’s or the general public’s understanding of the specific danger as the benchmark.At the time of judgment,a combination of prior judgment and post-judgment is adopted.For the actual danger judgment and identification of actual potential damage offence in judicial practice,the actual danger judgment is structured according to judicial logic.When the judiciary determines a actual danger,the judge shall stand in the post-event position and trace the behavior back to the time of the behavior based on all the objective facts ascertained after the event,and then revolve around the behavior elements and conduct a comprehensive analysis of the behavior attributes,behavior methods,behavior objects,and the degree of implementation of the behavior.For inspection,first judge whether the behavior has the possibility of infringing legal interests.If the behavior does not have the possibility of infringing legal interests,there is no need to judge the specific danger of the result attribute.On the basis of determining the possibility of infringing legal interests,the existence of legal interest infringement is judged,and finally a value evaluation is carried out based on the subjective cognition of the perpetrator to form a framework for identifying specific dangers.