Research On The Narrowing Method Of Abstract Dangerous Crime

In criminal law theory,a distinction is made between dangerous and harmful crimes based on the criterion of whether or not the crime causes danger to the protected object.However,there are different views on the level of "causing actual harm to the protected object" and whether there are different kinds of dangerous crimes.Because the concept of abstract dangerous crime in China’s criminal law theory is not clear,the application of dangerous crime is improperly expanded,and the basic principles of criminal law,such as the principle of protection of legal interests,principles of responsibility,etc.conflict.In the abstract dangerous crime,the abstract danger should belong to the attempted crime required elements.Abstract dangerous crime and the starting point of criminal punishment,act crime,form crime,etc.should not be confused.Therefore,it is necessary to limit the scope of punishment for abstract dangerous offenders from several dimensions to avoid the excessive expansion of the scope of criminal punishment.In the German and Japanese criminal law theory,the discussion of abstract dangerous crime has the same development trend,all show the tendency from the form to the substance.Substantive interpretation provides a large number of programs.The Japanese formal theory either believes that there is a danger proposed by the legislator in the abstract dangerous crime,or the punishment is for the dangerous behavior.The Japanese substantive theory elaborates the identification of abstract danger and the difference with specific dangerous offenders from different perspectives.The German traditional theory is the general danger theory and the abstract danger theory,the former punishes the dangerous behavior,and the latter explains the difference between the abstract danger offense and the concrete danger offense from the perspective of procedural law.There are also views that draw on the justification of other "atypical crime types",such as negligence and inability to commit crimes,to explain the justification of the abstract dangerous crime.The security theory is to justify the abstract dangerous offense by expanding the traditional concept of legal benefit and constructing spiritualized legal benefit.Drawing on the existing theoretical scheme,and considering the requirements of the basic principles of criminal law,according to the different types of protection of legal interests,abstract dangerous offenders can be distinguished into two kinds: the advance type protecting personal interests,and the expansion type protecting collective interests.The expansion type abstract dangerous offender focuses on the legislative limitation,through the application of the principle of appropriateness and proportionality to delineate the scope of punishment.The advance abstract dangerous offense requires the existence of a dangerous state.Therefore,advance abstract dangerous offenders focus on judicial restriction,and how to correctly judge the existence of the "dangerous state" is the key point.Phased judgment should be made from two aspects: identifying the inducement and rescue factors as well as judging the opening of the dangerous process.