The Discussion On The Danger Of Potential Damage Offence

Since the20th century, with the rapid expansion of globalization and the speedydevelopment of science and technology, human society has undergone a fundamentalchange. During this period, a variety of new kinds of "danger" appeared."Danger" isbecoming a major feature of modern society. In order to prevent from such newmodern "danger", legislators often choose “potential damage offence" as a legislativemodel. In this way, the law enforcement department can punish perpetrators beforereal harm happens. Therefore, how to understand the danger in the concept ofpotential damage offence determines the outline of the penalty circle. All these arerelated to the balance between two important functions of criminal law, protection oflegal interests and human rights.In this paper, the discussion started from "danger" in the risk society, then throughpursuing the essence of “danger” to figure out the concept of “danger”. The author tryclarify the classification criteria of actual potential damage offence and abstractpotential damage offence and draw a line between actual potential damage offenceand consequential offence, abstract potential damage offence and behavioral offence.This paper attempts to establish a method for determining actual potential damageoffence and narrowing the scope of abstract potential damage offence. Besides theintroduction, the paper contains five chapters.Chapter I. In the discussion of "danger" under the risk society, the first chaptertries to explore approaches about how criminal law deals with modern danger. Danger,in a broad sense, not only means the impact of external factors from the outside world, but also may include the crisis made by human behavior and institution defects. Toillustrate the special "danger" of modern society, sociologists use “risk” to replace“danger". The modern danger is a product of modern society, and modern society’s"dark side" led to the modern danger. The modern danger has the feature ofuncertainty, complexity and diffusion. Besides, danger of modern society is aman-made one which also has the character of equality and global. The moderndanger is the institutional crisis of the capitalist institution, mainly results from theconflicts and the lack of some institutional systems. The modern danger is the dangerof technological rationality alienation. Technological development deviating from thepurpose of serving people, has become a source of risk. First, technological rationalityalienation stems from the failure of technological systems; Second, technologicaldevelopment out of the control of social rationality caused the alienation oftechnological rationality. Third, the essence of technological rationality alienation isbecause of the abuse of technological. Chinese society is a risk society with Chinesecharacteristics. The dangers of Chinese society are as followed: risks caused byuneven economic development; risk resulting from deficiencies in the system; riskcaused by environmental degradation and economic globalization risks.Risk criminal law, created under the voices of increasing the control efforts for therisk of modern society, has aroused widespread concern and discussion in recent years.China’s criminal law scholars understand the "risk" too generally. If we understand the"risk" too generally, the value of "Risk criminal law" theory that reflecting modernsociety will be gone. Also,"Risk criminal law" will become an all-encompassinglarge pocket. Challenges of risk society to criminal law mainly manifested in twoaspects：the concept of legal interest and the imputation theory in criminal law. Riskcriminal law is a legislative trend of functionalization of criminal law. Risk criminallaw has studied the development of a series of criminal law phenomenon in risksociety, such as expanding the scope of potential damage offence and makingsome new type of crime. Risk criminal law developed the traditional theory ofcriminal law in two ways： abstraction of the concept of legal interest andfunctionalization and objectivation of the imputation theory in criminal law. Riskcriminal law has some contradiction and conflict with the traditional theory ofcriminal law. Such as abstraction of the concept of legal interest caused expansion ofcriminal penalties; functionalization and objectivation of the imputation theory in criminal law caused the expansion of the scope of the crime.Thus, theory of risk criminal law must be expanded within certain limits in order torealize the coordination between risk criminal law and traditional criminal law. Riskcriminal law is a supplement to the traditional theory of criminal law. Risk criminallaw should also be restricted by the basic principles of criminal law, adhere to theprinciple of imputation theory in criminal law, and follow the principle ofproportionality as well.Chapter II. On the basis of discussion of the legislative basis of potential damageoffence, the second chapter tries to explore the essence of danger of Potential DamageOffence. The theoretical basis of potential damage offence establishment is thatcriminal law must deal with the danger of social modernization and it is therequirement of early protection of the interests of law. Potential damageoffence establishment is a necessity of the criminal policy of risk society. It helps tocomplete the general prevention function in criminal law. Potential damageoffence establishment can make up the barriers and vulnerabilities ofInvestigation attempted responsibility. Potential damage offence can make completeevaluation of lawless Will, and is effective in preventing crime, solvingproblems of the criminal consequence identification.The concept of "consequence" appeared far earlier than the "danger" concept inthe history. The source of nature of danger of potential damage offence can be tracedback to the debate between objectivism and subjectivism in the theory of criminal law.The subject of the debate between subjective danger and objective danger is whetherdanger is a "judgment" or a "state". Danger is a state that is the possibility ofinfringement of legal interests. In Chinese criminal law, the traditional view of natureof danger has a tendency to subjectivism. With the respect to the nature of danger,specific danger views are more persuasive. Specific danger views are in line with theconstruction method of crime in China’s criminal law, emphasizes theobjective standard of danger judgment, limit the scope of danger, prevent unlimitedlyusing the penalties，conducive to the protection of human rights, and realize theprotection function and the safeguard function of the criminal law. At the same timespecific danger views have a solid social foundation. Chapter III. On the basis of definition of potential damage offence, it can bedivided into actual potential damage offence and abstract potential damage offencebase on the nature of danger. Chinese scholars often define the potential damageoffence from three point：basis of punishment, establishment of a crime, consummatedcrime. Definition of potential damage offence should be excluded from the point ofpunishment basis. The concepts of potential damage offence based on establishmentof a crime or consummated crime have no real conflict, but the concepts are notcomplete. In order to reveal the essence of potential damage offence, we must proceedfrom the fundamental nature of the "danger". The "danger" of actual potential damageoffence reflects the results of worthlessness；The "danger" of abstract potentialdamage offence reflects the Behavior worthless. Therefore, to describe potentialdamage offence in a unified concept, it’s neither a good way to focus on the results ofworthlessness nor on the results of worthlessness. Potential damage offence is a kindof crime when the risk of certain legal interest or the behavior leading to abstractdanger constitutes a consummated crime. From the point of punishment, potentialdamage offence and attempted crime have no essential difference. From the point ofcriminal legislation, the "danger" of potential damage offence is chosen by legislators,which need to be protected especially. After selected by Criminal Law, potentialdamage offence becomes a type of consummated crime, and has essential differencewith attempted offense. The "danger" of actual potential damage offence likes theconsequences of consequential offence，is one of the manifestations of crime results.Actual potential damage offence is consequential offence. Abstract potential damageoffence is a kind of behavioral offence. Behavioral offence includes abstract potentialdamage offence and anther behavioral offence. The relationship between actualpotential damage offence and consequential offence is the same as the relationshipbetween Basic crime and criminals with serious results.On the basis of the nature of "danger", potential damage offence can be dividedinto actual potential damage offence and abstract potential damage offence. Abstract potential damage offence mainly exhibits dangerous behavior. Actual potentialdamage mainly exhibits the legal interests in a dangerous situation.Chapter Ⅳ. On the basis of discussion of the concept and structure of actualpotential damage offence，the forth chapter tries to establish a theoretical system ofactual damage judgments. Actual potential damage offence is a kind of crime thatwhether the perpetrator’s conduct is sufficient to cause danger, needs to be judgedaccording to the specific case. Actual potential damage offence shall be limited tospecific crimes that have a significant risk to public legal interest and those against thecomplexity of the object. Elements of actual potential damage offence neededto establish "danger" should include "dangerous act", and the causal relationshipbetween the "dangerous act" and "danger". To establish actual potential damageoffence, people must have made forbidden risk, and we should make judgments of thecausal relationship between behavior and the results. Dangerous intention is the basisof actual damage judgments. For the kind of actual potential damage offence thatdanger means pressing real harm occurs, intention of danger often looks like intentionof consequence. For the kind of actual potential damage offence that the danger isan indicative role for real harm while results occur and the danger dose not have aclose relationship with consequence, subjective attitude includes direct intent fordanger and the understanding of consequence. For the kind of actual potential damageoffence that the occurrence of danger is far apart from consequence, subjectiveattitude includes intent for danger and negligence of consequence.Essentially, actual potential damage offence requires people making judgmentbased on some objective facts of danger. Method for determining actual danger can bea two-stage way: The first stage is "the judgment of occurrence probability ofconsequence". At this stage, in view of post-judgment, we need to consider all thefacts, Recognize the possibility of real harm in specific cases. That is, considering allthe facts when The verdict comes to know，his behavior starting causal chain will leadto real harm of legal interests. The second stage，"the judgment of the chance of consequence do not occur ". At this stage, In view of post-judgment, considering thecause of consequence will not occur if it’s accidental.Chapter Ⅴ. On the basis of discussion of the concept and structure of abstractpotential damage offence，the fifth chapter discuss the limit method of abstract danger.Abstract potential damage offence is a kind of crime thatactor’s act is conforming under constitutive conditions which constitute aconsummated crime. From the view of behavior worthless，Abstract potential damageoffence just request a specific behavior without any real danger. Though seeminglyabstract potential damage offence do not match the requirements of legal interestprotection, legislation of abstract potential damage offence still base on legal interestessentially. Abstract potential damage offence meets the needs of Social defense andhelps people form for the specification of the sense of identity. Standing inthe position that criminal law should protect the legal interests, abstract danger shouldbe understood as general danger. Abstract potential damage offence bases onPunishable behavior, and its behavioral elements contain a brief presentation ofseveral components. These elements have been the choice and abstract of thelegislator. The legislator transformed the experience that damage happened in the pastto a consistent, clear "characterization" of danger acts. The subjective aspect ofabstract potential damage offence asks whether the actor has intent on behavior.Dangerous driving is an intentional crime. The actor has intent to have the dangerousdriving behavior. The subjective aspect of Dangerous driving is intent or negligence."Abstract" of abstract danger set a form of danger. This "form" requirementmeans that the range of abstract danger has certain universality and generality.However, this generality and universality are not absolute, the range ofabstract danger needs to be limited by the view of worthless consequence. Ifwe can eliminate behavior actual danger in certain case, the behavior shouldbe excluded from the punishment of abstract potential damage offence, and theabstract danger has not occurred.