Research On The Abstract Dangerous Crime

As a mainstay category and basic concept in the criminal law, the danger refers to the objective possibility that be caused by the constitutive behavior and exist the actual damage and be violated.The danger in the criminal law has dual character, namely, from the fact that the formal point of view, the risk is the possibility of damage objectively.From the real value of the point of view, risk is the possibility of damage of legal interests.The danger in criminal law is the elements of dangerous crime on the status and function or the standard of punishment to the substantive dangerous crime,such as abortive crime,preparatory crime,offender, accessory.The status and capability indicates that danger is all the necessary elements of crime other than accomplished crime,such as actual damage crime. Therefore, in our country criminal law theory, there is no distinction substantive crime between formal crime, the concept of the formal crime should be denied.According to the general theory classification, danger can be divided into subjective and objective danger danger; the banned dangerous and allowed danger; high risk and low risk; less abstract danger and more abstract danger; acute danger and chronic danger. From a normative perspective, the danger in criminal law can be divided into written and unwritten constitution dangerous, or the danger of dominant elements and recessive elements of risk; risk behavior as attributes and as a result danger; specific risk and abstract risk.The danger in this paper will be divided into the danger of form and danger of essence; the realistic danger and potential danger; the danger of human interests and the danger of middle legal interests.The definition of the concept of dangerous crime should be measured by specification standard in the form and the substance. That is, dangerous crime is the basic crime type which refers to the elements of constitution and foundation of punishment. The characteristics of dangerous crime is that dangerous elements as constituent elements and foundation of punishment, recognize and tolerance the danger subjectively, requirements should be expected but did not foresee the danger, or though have foreseen the danger but credulous.lt can be avoided in the case of criminal negligence.According to different criteria,dangerous crime can be categoried varily.Three kinds of category are meaningful, specific dangerous crime and abstract dangerous crime; intentional dangerous crime and negligent dangerous crime; crime against individual legal interests and harm particular legal interest or most people interests. The purpose of establishing dangerous crime in criminal law is to protect the legal interests and putting penalties frontly through early interception, and playing the standand’s guiding and declared function, to achieve positive prevention.Although the concept of dangerous crimes should adopt the normal standand, but the concept of real danger based on the punishment has the great theoretical and practical significance to study the abortive crime,preparatory crime,offender, accessory.The crime category aboved is the real dangerous crime but not dangerous crime normative danger crime. So logical errors can be effectively avoided in judgment of unaccomplished crime in form and substance evaluation judgment confused, so that the crime aboved become the form of dangerous crime.The concept of real dangerous criminal is also crucial in the problem of impossibility,who is the basis on the distinction between the attempted crime and the crime of impossibility.From the author’s point of view,the dangerous crimes is consisted by the structure of behavior,infringement object and reality harmful consequence and structure of behavior,middle law interest and human being’s legal interest. To the relationship in the dangerous crime and conduct crime and damage crime, dangerous crimes abstractly is the conduct crime or damage crime. Specific dangerous crimes is the consequential offense legally.Based on the concept of danger crime, the abstract danger crime refers to the criminal type that abstract dangerous state is the punishment basis as the elements of crime constitution for constitution behavior or result.The characteristic of abstract dangerous crime includes that the abstract dangerous crime’s elements of crime constitution is abstract danger objectively,and recognizes that the abstract danger is necessary subjectively. The purpose of establishing dangerous crime in criminal law is to protect the legal interests and putting penalties frontly through early interception, and playing the standand’s guiding and declared function, to achieve positive prevention,to control the risk and protect the legal interests,to induce the responsibility of provement. However, the abstract dangerous crime not only results in the advantance of the criminal defence but also significantly reduce the criteria and standards of crime recognized due to the abstract dangerous crime, which may contain a risk of violating human rights.Therefore, the legal form of the abstract dangerous crime has many problems,which should be treated seriously.The difference between abstract dangerous crime and concrete dangerous crime is that abstract danger is an unwritten rule and the concrete risk is written constitution formally.So abstract danger is legal fiction, the type of dange, the general danger, the abstract danger can not be judged like the concrete dangerous, the judge at the trial judge need to be confirmed in the abstract danger dangerous crime,the general social life is the basis for judging whether the conduct of the constituent elements of actual damage and the risk of having a legal interest infringed upon by the judge. If the danger dosen’t occour after the general judgment is conducted,it can not be convicted and punished.To the abstract danger’s judgment, there has been a differance between form and substance opinions.The form opinion has the mainly pure disobedience; general danger;fiction view.the substantial view has behavioral unscrupulous view; security derogation, noting violation of the obligation and so on. This paper argues that the judgment of dangers abstract should comply with two basic principles.First, we must first determine Perilous abstract legal interest to be protected; Second, we should insist on form and substance double judgment. While we should actively learn from foreign (mainly Germany) proposed various theories of criminal law, and on the basis of mastery on the combination of theory and practice of China’s Criminal Law,then put forward our own new doctrine full of innovative idea and potential damage final form abstract theory with Chinese characteristics as much as possible. On the issue deliberately abstract perilous,it is that human recognize the abstract danger simply and vaguely.Accomplished crime standard terms should be divided, that is the first to distinguish between crime judged by act and committed with the results. The standard of accomplishment is the standard of conducting crime,and the standard of damege crime is the harm.The relationship between the dangerous crime and the damage crime is that the basic relationship between the aggregated consequential offense and the corresponding real harm that is dangerous crime committed. At the same time, due to different modes of foreign criminal legislation, the crime of abandonment of criminal law is defined as the plot to commit, and therefore which does not involve issues constitute the basic relationship between the guilty and the aggregated consequential perilous corresponding real harm committed.Abstract dangerous crime can be divided into traditional and new abstract dangerous crime. Traditional abstract dangerous crime.can be re-divided into preliminary abstract dangerous crime, abstract dangerous crime of common crime (abstract dangerous crime of instigator type, abstract dangerous crime of helping type), abstract dangerous crime of holding type. The new abstract dangerous crime can be re-divided prevail abstract dangerous crime ("Abstract-concrete dangerous crime ", "Qualified committed crime"), the cumulative guilty crime (guilty accumulation).In danger in the law expressly provides, "endangering public safety" is the nature of the arson offense as a requirement and sign of abstract dangerous crime; "be enough to harm human health" and other dangerous is the requirement of acts causing crime or composing crime; "enough to make trains occur subversion, the destruction of danger" is a concrete danger status, specific dangerous signs; "serious risk of infectious diseases (diseases) spread" is also a specific dangerous state, specific dangerous crime and concrete Dangerous signs of negligence.In the Criminal Code, for Perilous existence range, there has always been broad and narrow sense of the dispute. Because the conceptof danger should be defined in the specification perspective, it should be adopted narrow sense. Dangerous abstract existence range of course also narrow sense prevail. At the same time, the abstract danger should not be defined in the crime of endangering public safety in the narrow sense.This paper argues that the abstract danger crime in Chinese criminal law includes 132 accusation in Chinese criminal law.Due to the establishment of the so-called "risk criminal law" in response to the "risk society",the study of abstract dangerous crime should study the relationship between abstract dangerous crime and "risk society" and "risk criminal law" theory. On the theoretical basis "risk society", "risk criminal law" theory came into being response to "risk society" demand. The risk of criminal law with the intention that the functions of criminal law should focus gradually from retrospective punishment for violations to a proactive prevention against the risk, compared to the traditional guilt criminal law, the basic stance of risk of criminal law, the basic theory and specific claims has a significant breakthrough. But for the "risk criminal law" concept, it is still in a state of intense debate in Germany and Japan, including China,Risk society theory can be said, in essence, a product of rational reflection. The relationship between the risk criminal law spawned in the risk society theory and the traditional criminal law is that transcendentalism, deconstruction thinking, value rationality and empiricism, the construction of thinking,instrumental rationality. Therefore, a "risk society" and "risk criminal law should be criticized in philosophical, cultural and social field, which is not venture into politics, law practice operational level.Otherwise it will lead to systemic disorders. At the same time, the risk of objective imputation theory may simply borrowed the "risk" of the name, which is different concept from the "risk"of criminal law theory. Therefore, objective imputation theory and risk theory of criminal law is not directly or substance of association.As the "risk" and "dangerous" fundamentally are different in nature, so the risk of criminal law is completely different with the traditional criminal in the basic position, the basic theory, specific claims,and gradually approaching the criminal law of perpetrator and criminal law concept of subjectivism. But in general, abstract danger crime still stick to the traditional legal interests of criminal law, the standpoint of criminal law.Therefore, the theory and the practice of the abstract danger crime still belongs to the category of traditional criminal law, criminal law and can not of course make note of the risk area. But we can not be reject the absolutely risk theory of criminal law, because it helps from different theoretical perspectives to examine the problems of modern society and solutions exist, encourage people to reflect on the various ills of their own development, and to obtain value from a rational perspective balance, digestion instrumental rationality abuse’s negative tendencies.For the requirements of current legislation theoretically expanding the scale abstract Perilous, in order to achieve social protection, the prevention of dangerous pursuit, it is necessary to adopt a rational and prudent attitude, and should be strictly limited field of application of abstract danger crime.