On The Objective Elements Of The Crime Of Dangerous Operation

In recent years,a number of serious production safety accidents have frequently appeared in the press,triggering widespread public concern.General Secretary Xi Jinping has stressed many times that the responsibility of safety is weightier than Mount Tai.Production and business units should strictly observe the bottom line of work safety to ensure the safety of people’s lives and property.In order to further standardize production safety,strengthen risk prevention and eliminate potential accidents,the Amendment to the Criminal Law(11)starts from the source,moves the punishment threshold for production safety accidents forward,adds the crime of dangerous operation,and for the first time brings illegal production and operation behaviors that may cause "real danger" into the criminal circle.It is clearly stipulated: "in the process of production and operation,if there are one of three legal circumstances,violating the relevant provisions of safety management and causing serious consequences such as serious casualties,they shall be convicted and punished for the crime of dangerous operation." As a new crime,it is very important to accurately grasp the conviction standard of the crime and properly play the role of the crime in resolving risks and hidden dangers and protecting production safety.As a necessary component of crime,objective elements are the key to distinguish crime from non-crime,this crime from another crime.The key to accurately identify objective elements is to identify their objective elements and their correlation.For the crime of dangerous operation,the key to identify the objective elements of the crime is to identify the spatio-temporal elements,prepositional elements,behavioral elements and result elements of the crime and their mutual relations.According to the provisions of criminal Law,"in production and operation" is the space-time element of this crime,and "production and operation" must have "economic participation" and "endanger public security".The identification of this element should be considered in both time and space.It is reflected in time from the preparation of production conditions to the completion of the production task.In space,it requires places or regions closely related to production and operation activities."Violation of safety management provisions" is the prerequisite element of this crime,However,the criminal law has not clearly stipulated the connotation and extension of "safety management regulations".According to the Opinions of the Supreme People’s Court on Further Strengthening the Trial work of Criminal Cases endangering Production Safety,we can determine whether the perpetrator violates the "safety management provisions" and what provisions he violates.The three "dangerous operations" clearly stipulated by the law are the elements of the crime,which can be summarized as infringing on production safety facilities and information data,refusing to eliminate the hidden danger of major accidents,and engaging in high-risk production and operations without authorization.The identification of this element should be considered comprehensively from the aspects of behavior mode,behavior object and behavior content."Real danger" belongs to the dangerous result of the harm result,and is the result element of this crime,that is,the real danger state caused by dangerous operation behavior to legal interests.The judgment of "real danger" is complicated,so it is necessary to carefully review the facts of the whole case and comprehensively judge whether "real danger" is significant and realistic urgency based on relevant laws and regulations as well as professional and technical standards of various industries.Only when the above four objective elements are met at the same time can the objective elements of the crime be established.