The Research On The Appliation Of Law Of Abstract Dangerous Crime

The connotation and extension of abstract dangerous crimes have not been determined in academic theory.This article selects the narrowest abstract dangerous crimes for research,limiting the scope of research to "micro crimes" such as high-altitude throwing,obstructing safe driving,and drunk dangerous driving with statutory penalties of less than one year in prison(including detention),making the research of this article concrete.The application of individual crimes in abstract dangerous crimes includes conviction and sentencing.There is a problem of confusion between formal and substantive judgments in the identification of abstract dangerous crimes,which leads to unclear boundaries between crime and non crime,and the expansion of criminal circles.This paper makes a substantial judgment on danger from two aspects:the two-tier view of legal interests and the recognition that the doer should have a type of danger caused by the behavior.Taking this as an example,it discusses how to make substantive judgments on abstract dangerous crimes:to provide substantive explanations on the constituent elements of crimes such as"high altitudes","throwing","objects","serious circumstances",and subjective aspects,and to pay attention to the boundaries between criminal crimes,administrative violations,and civil torts,while maintaining the modesty of criminal law,To prevent the crime of throwing objects from high altitude from becoming a crime of pouching.From the perspective of point to surface,generalize and apply the judgment rules for the crime of throwing objects from high altitude,and make substantive judgments on abstract dangerous crimes from the perspective of a dual layer legal interest perspective.The path of the abstract dangerous crime is to allow the defendant to prove that their actions do not have the risk of causing certain consequences from two aspects:the conformity of the constituent elements and daily experience;Increase the application of the "proviso" and adopt the "crime standard theory" to separate behaviors with significantly minor circumstances and minimal harm from criminal behavior and treat them as innocent;Distinguish between criminal and administrative violations,and distinguish between criminal and administrative violations from the standpoint of "negating the unity of legal order".Special abstract dangerous offenders should consider accomplices and unfinished forms.The establishment of abstract dangerous crimes in the form of accomplices also applies to the subordinate rules of accomplices;Abstract dangerous crimes have unfinished forms,and whether suspension is established should be discussed according to different situations:suspension is not established when the behavior and result occur simultaneously,and vice versa.In terms of sentencing,by analyzing the most common abstract dangerous crime-the crime of drunk driving dangerous driving,we hope to see the big from the small and explore the sentencing issues of abstract dangerous crimes.After empirical analysis,it was found that there are problems with the sentencing of drunk dangerous driving crimes,such as different judgments in the same case.The reason is that different regions have different sentencing guidance opinions for drunk abstract dangerous driving crimes,and the main factors for judges to exercise their discretion.The main ways to solve these problems include:firstly,adhering to the principle of compatibility between crime,responsibility,and punishment.Specifically,adhering to substantive interpretation and excluding behavior that meets the constitutive requirements in form and behavior that is not worthy of punishment from the crime;The second is to increase the application of discretionary non prosecution and clarify its scope of application by referring to the relevant provisions of the expedited judgment procedure for confession and punishment;The third is to increase the application of probation and establish a prediction system for the possibility of recidivism in China,in order to determine whether probation can be applied in specific cases.