Understanding And Application Of "Serious Circumstances" In The Crime Of Parabolic High Altitude

In recent years,with the rapid development of Chinese urban construction,the number of high-rise buildings has increased sharply,and the density of residential space has become a common phenomenon.The behavior of throwing at high altitude has become "the pain hanging on people’s heads",which is not only the disturbance of social public order,but also the social harm that cannot be underestimated.The relevant provisions of civil law alone can no longer effectively manage and prevent this chronic social disease.The Opinions on Properly Hearing Cases of Projectiles and Falling Objects from High Altitude(hereinafter referred to as the Opinions),issued in November 2019,clarified the crimes of projectiles and falling objects from High altitude under what circumstances.The 11 th Amendment to the Criminal Law of the People’s Republic of China(hereinafter referred to as the 11 th Amendment to the Criminal Law)was promulgated in December 2020,and added a new crime of throwing objects at altitude.Thanks to the continuous improvement of legal provisions,it provides legal basis for judicial staff to judge the act of throwing objects at high altitude.However,because there is no detailed implementation standard,the identification of "serious circumstances" in the crime in practice needs to be further refined and clear.This paper compares and analyzes three representative cases,and points out that in the process of trial,there are often different verdict results for such cases.Based on the legal analysis of the three cases,the author puts forward his views and opinions.The first part,through the comparison of the three cases and the results and reasons of the judgment,summarizes the common focus of dispute in the cases,and then leads to the following issues to be discussed.The second part is the legal theory analysis of the controversial issues,starting from the specific protection law of the crime of throwing objects at high altitude as a starting point combined with the relevant academic arguments of the crime of throwing objects at high altitude as a result of the article to discuss the "serious circumstances" of the identification process needs to pay attention to.The third part,based on the jurisprudential analysis of the second part,gives the corresponding conclusion for judging whether the case of throwing objects at high altitude belongs to the "serious circumstances" of the crime in practice,and puts forward suggestions for clarifying the scope of the regulation of the crime and reasonably restricting the judge’s discretion.Adding the crime of throwing throwing at altitude to the 11 th Amendment to the Criminal Law can better prevent the crime.Meanwhile,compared with the crime of endangering public security by dangerous means,the punishment of this crime is relatively light,which can effectively improve the judicial problems of rigid application of the Opinions in the past and avoid heavy sentence of misdemeanors.However,in order to achieve this goal,we must have a correct understanding of the connotation of the concept of "serious circumstances" in the provisions of this crime.As the core requirement for the establishment of this crime,the accurate understanding of "serious circumstances" should be based on the correct grasp of the specific protection law benefit of this crime--social management order,only the high altitude throwing behavior disturbs the social management order to the extent of serious circumstances can be identified as the crime.Because the act may pose a risk to public safety,it is difficult to distinguish the crime from other crimes,in particular the crime of endangering public safety by dangerous means.For the act of throwing objects at high altitude which breaks through the specific protection law of this crime,we should combine the objective act of throwing objects at high altitude with the form of subjective crime and analyze it,so as to help select the crime accurately and apply it.The author believes that the identification of the "serious circumstances" of the crime should first be based on the objective elements,such as the identity of the perpetrator,the scale of the behavior,the consequences caused by the perpetrator and other objective elements.The identification criteria of the crime should not be simply understood as the addition of the objective harm of the behavior and the subjective malignancy of the perpetrator.Secondly,it should be clear that the objective harm result is not the necessary condition for the establishment of the crime,and according to the specific description of the crime in the provisions of the Criminal Law,the establishment of the crime does not require the doer to have the content of purpose or motivation other than intention,which needs to be based on the corresponding relationship between objective and subjective elements.And in the framework of the legal interests of social management order to deduce the subjective and objective conformity,and then determine whether to establish the crime;Finally,it should be emphasized that serious circumstances should be considered as the entry circumstances of this crime,and should not include the preventive circumstances reflecting the personal danger and possibility of recidivism,but should be considered as the sentencing circumstances.