Research On Abstract Potential Damage Offense

In the second half of20th century, the traits of risk society became obvious and abstract potential damage offence was the important means to prevent risks. Functional use of criminal law, the symbolization of criminal law response the request of public while is also violently criticized by scholars. Confront the problems of wild terrorism activities, soared rates of traffic accident, the aggravate of environment pollutions, the abstract potential damage offence is playing more and more important role in risk criminal law. The typical crime of abstract potential damage offence was arson in classical criminal law, while terrorism crimes, economic crimes become typical examples in risk criminal law. This phenomenon presents that criminal law intervenes dangerous act in advance. The abstract potential damage offence is almost found in every chapter of Chinese Criminal law, which is entirely different from offence of act and attempted crime.Legislators based on their experiences made the acts that typically have high hazard the crimes in criminal law, which are called abstract potential offences. The distinction between abstract potential damage offence and material potential damage are two:the degree of abstract danger in constitution of crimes and the factors that judges examined in trials. If the defendant prove his act had no danger, or the act did not deserve constitutional elements, the defendants will be acquitted. Some scholars approved abstract potential damage offence for it would tight the dragnet of crime justice and punish the incidental unlawful act. On the contrary, contestants held abstract potential damage offence went against ultima ratio of penalty and the principle of responsibility. I believe in risk society, abstract potential damage offence are necessary legislation model in managing risk. In order to limit the boundary of abstract potential damage offence, we could consider that following two factors:if legislators could use other types to create crimes, they should not use abstract potential damage offence. If legislators had to create abstract potential damage offence, they should adhere to the modesty principle.Abstract potential damage offences have expanded into economic crimes and environmental crimes, which caused the crisis of Die Rechtsgutstheorie. Spiritualization of rechtsguts and rarefaction of rechtsguts caused the debate of the monism of rechtsguts and the duralism of rechtsguts. In face of risks in society, in order to prevent nuclear rechtsgut from damaging, legislators create statute to protect the interests which are the conditions for nuclear rechtsgut to be realized. In consequence, it appeared that criminal law protects rechtsgut in advance. The33th article of Chinese Constitution Law provided:China respects and protects human rights. The Constitution Law also provides that China develops educational facilities and labor opportunities to promote individual's personality development. So the rechtsgut of abstract potential damage offences are the precondition for individual to achieve their social and economic rights, which represents self-renovation of rechtsgut theory. The other reason for creating abstract potential damage offence is to achieve the goal of positive preventing crimes. Criminal law punished acts that has not caused damage, so as to establish standard of conduct for public and therefore cultivate the public's trust and loyalty for criminal law. It is also the way that government distributes parts of responsibility of avoiding risk to individuals.The key to identification of abstract potential damage offence is handlungsunwert and I would like to use the dualistic handlungsunwert for imputation of abstract potential damage offence. Traditional modes of imputation for abstract potential damage offence had three shortcomings:unified standards and difficulty in proving the subject fault elements of the defendants. So I suggest to use the standard of "increased risk theory" for imputation. In objective----rational criminal theory system, intention belongs to the section of constitute elements and responsibility section. In abstract potential damage offence, the intention in constitutional elements could be presumed by objective acts while the intention in responsibility section will be deserved if the defendant have the possibility to know his action was illegal. Chinese criminal constitution system contains the the reasons of excluding crime, which provide the space for defendants to prove he is innocent. Specific speaking, there are two ways to prove that the defendants are innocent:first, If the content that the defendant argued belongs to the constitution of crimes, the judge will consider the defendant is innocent by explaining the crime materially. If the content that the defendant refused belongs to reasons that excludes crime, the defendant burden the proof of form, and such evidence amount to preponderance is enough.Abstract potential damage offence could and should be implemented in criminal justice and the identification of it has important influence in determining whether the crime was established, deciding the charges and improvement of legislations. I believe the crime of arson in article114is quasi-abstract potential offense, because even if the defendant sets fire, the fire is not necessarily amount to the degree of endangering public safety, which is the important factors that distinguish arson from crime of damaging properties intentionally. The increased risk of danger could be judged by the integration of buildings and this crime could be perfected by detailed statement of the crimes. The handlungsunwert of crime of poduction,sales of poisonous and harmful food lies in that the acts of producing, sale damaged the necessary conditions of food security which maintain public health. So legislators should add the crime of possessing poisonous and harmful food and increase the amount of fine. In drunk-driving,80mg/100ml is the evidence to prove the danger was increased. In practice, the meter of exhalation valve may not accurate and the fact that the defendant's drunk drive unwillingly are main reasons of excluding crime.