Study On The Crime Of Throwing Objects At High Altitude Under The Positive View Of Criminal Law

After Ulrich Beck’s "risk theory" is integrated into the rule of law society,the risk criminal law arises at the historic moment,and the whole world has entered the era of active criminal legislation,which is the result of the gradual entry of the positive criminal law concept,which is gradually affecting the criminal governance of various countries in the world,and the preventive legislation model formed under the influence of it is promoting the modernization of criminal legislation.The crime of throwing objects at high altitude is the product of this legislative background.This paper,starting from the positive criminal law view and taking the crime of throwing objects at high altitude as the main line,aims to study the crime of throwing objects at high altitude under the positive criminal law view,and puts forward the path to prevent the expansion risk of the crime of throwing objects at high altitude.In the game between the positive criminal law view and the negative criminal law view and the modesty doctrine,the positive criminal law view breaks through the heavy circle and exerts an influence on our criminal legislation virtually.It is not absolutely opposed to the other two points of view;they are different sides of the same problem.The positive concept of criminal law has quietly changed the structure and function of our country’s criminal law under the global trend,and our criminal law has developed towards the direction of abstract dangerous offense.The crime of throwing objects at high altitude comes into being under the guidance of the positive view of criminal law because the existing criminal law is limited in regulating the behavior of throwing objects at high altitude.The crime of throwing objects at high altitude is a new crime under the guidance of the positive view of criminal law,showing the characteristics of the early protection of legal interests.The establishment of this crime provides a way to solve the judicial dilemma such as different sentences in the same case.As a new crime,the crime of throwing objects at high altitude is mainly understood and recognized from the constitutive elements,the conflation of charges or the relationship between crime and non-crime,and by comparing with the crime of intentional homicide,the crime of picking quarrels and provoking trouble,the particularity of the crime of throwing objects at high altitude is highlighted.The positive view of criminal law itself is a kind of expansive legislation.As legislation under the guidance of the positive view of criminal law,the crime of throwing objects at high altitude naturally has the potential expansion risk.Once the expansion will cause the problem of widespread punishment,it will ineffably weaken the power of civil law,intensify social contradictions and cause a non-virtuous circle.In the face of the potential expansion risks of high-altitude throwing crime,new paths to limit the expansion of high-altitude throwing crime are explored from two directions.First,to improve the provisions of the criminal law,it is mainly to set relevant provisions on "serious circumstances",and study the feasibility of judicial interpretation on "serious circumstances" by using enumeration plus understatement and reverse exclusion,so as to solve the problem of universal punishment.The second is the "layered co-governance mode of civil punishment" in the direction of substantive law.Both of the two approaches are to control the expansion of the criminal law by diverting lighter cases of throwing objects at high altitude.The layered co-governance mode of civil punishment is to reasonably divide the legal authority of the three department laws for high-altitude throwing behavior,uphold the principle of "civil progress,punishment retreat,and action supplement",and separate the high-altitude throwing behavior of different degrees in the whole society into departments to prevent the expansion of high-altitude throwing crime from becoming a problem of the pre-law.Civil law,criminal law,and administrative law,as three major laws of the legal society in our country,should supplement each other and avoid a single branch of law.In today’s highly regarded positive criminal law concept,criminal law should be always vigilant to avoid getting into the vortex of "all powers of criminal law".