| Modern society is a risk society,which is the bed of “Risikostrafrecht”(Risk Criminal Law).Abstract dangerous crime is the core of “Risikostrafrecht” theory.Although the general prohibition of dangerous acts from abstract dangerous crime is the reflection of Handlungsunwert(Act without Value),there is positive value towards the protection of normative force of criminal law.Therefore,the main trend in the revision of criminal law in recent years is early and fronting penalty.Comparing to the value of freedom,legislator pays more attention on the value of order,especially on the protection of society order.Legislator applies abstract dangerous crimes in areas of transport,food safety,medical and healthy care,internet safety,anti-terrorism crime,etc.Moreover,a large number of abstract dangerous crimes are added into Criminal Law Amendment IX,while the debates among problems of identification method,legitimacy,scope of penalty as well as restriction and design about abstract dangerous crime are still controversial.Because of the advantages and characters that traditional crimes do not have,abstract dangerous crime becomes legislator’s favorite.Strengthening the legislation of abstract dangerous crime is an inevitable trend in related areas.Although the expansionary application of abstract dangerous crime is a necessary result under the background of risk society,this result will definitely lead to the expansion of crime and weakening of legal interest protection.For this reason,some scholars hold the view that abstract dangerous crime is valueless or even harmful.In light of that,we should review abstract dangerous crime to level out the misunderstandings.In addition to the Introduction and Conclusion,the thesis is divided into four chapters.The first chapter is the theoretical basis of abstract dangerous crime.This chapter is divided into two parts.The first part demonstrates the independent status of the abstract dangerous crime.The concept of abstract dangerous crime has not reached a consensus in the academic circles,and the vague definition of the concept has created a serious theoretical crisis.In addition,the traditional division criteria of crime types are different,which leads to the blurring between the abstract dangerous crime and the form crime,as well as the actual dangerous crime and the behavior crime.So that it is more difficult to define the concept of abstract dangerous crime.With the prevalence of the theory of legal interest infringement and the rise of risk society research,manyscholars try to find out the characteristics of abstract dangerous crime,and draw the line between abstract dangerous crime,actual dangerous crime and behavior crime.Abstract dangerous crime and behavior crime are the division of crime types according to different classification standards.Under these different division standards,while the concepts are controversial and with unclear boundary,there must be the possibility of overlapping between these two concepts.Through the analysis of status of legal interest infringement,theory of formality as well as connotation of“abstract danger”,this article distinguishes the abstract danger crime from the form crime,the actual danger crime and the behavior crime.Abstract danger is constructive and typological,which shall make the third party uncomfortable and worry.In the meantime,abstract dangerous crime is an independent status that is different from actual dangerous crime and behavior crime.The second part discusses the legislative legitimacy of abstract dangerous crime.The characteristics of abstract dangerous crime determine its deviation from the traditional theory of legal interest and the basic principles of criminal law.Even though Abstract dangerous crime is an independent crime type,the legitimacy of this form of legislation is still questioned by all sides.Scholars from the Frankfurt school firmly deny the legitimacy of abstract dangerous crimes,they intend to regulate the risk under the protection of traditional basic theory of criminal law through other measures.In essence,the abstract dangerous crimes make dangerous behavior become type of crime in criminal law for early penalty.The application of penalty inevitably involves the personal property of citizens and the protection of personal rights.The legislative legitimacy of abstract dangerous crime is the core problem of the theory of abstract dangerous crime.Through analysis,this article demonstrates that although abstract dangerous crime deviates from the theory of legal interest based on Erfolgsunwert(result without value),it is an early protection of legal interest under comprehensive consideration.In addition,by setting regulation before the results come,abstract dangerous crime agrees with positive general prevention theory of criminal law.The establishment of abstract dangerous crime has its legislative basis,and from the point of value demonstration,it also has the necessity and legitimacy.The second chapter combs out the legislative of abstract dangerous crime.This chapter is divided into three parts.The first part introduces the legislative reasons of the abstract dangerous crime.The current criminal policy of tempering justice with mercy embodies the idea of combining criminalization with decriminalization.At thepresent stage,based on the actual situation of our country,the legislator applies abstract dangerous crimes to deal with offences of public hazards.On the other hand,as to some economic crimes,legislator removes death penalty,reduces statutory penalty,and increases the non-penalty measures.On the basic of reality,we shall focus more on one side under the integration of “lenience” and “strictness”.Although recently the law applies abstract dangerous crime,which is the result of focusing more on criminalization,and being much influenced by criminal policy,the legislation of criminal law in our country has not moved towards heavy penalty.It is the inherent requirement of the current criminal policy to appropriately add some abstract dangerous crime which is criticized by some scholars in certain fields.In addition,according to the criminal law of various countries,the establishment of abstract dangerous crime in criminal law is based on the consideration of legislative techniques.The reason why legislative technique of abstract dangerous crime is widely adopted is contradictions between the limitation of people’s cognitive ability and the complexity of social life is irreconcilable.Especially in the area of public crime,the law applies this legislative technique to deal with difficulties of proof and conviction when it can not promptly protect relevant legal interests.The second part is a simple conclude of domestic and foreign legislative status.Abstract dangerous crime has a distinctive position in the legislation of many countries and regions.Among them,the typical legislation of German criminal law and Japanese criminal law can give us some enlightenments on the legislation of abstract dangerous crimes.The legislative scope of abstract dangerous crime in China’s criminal law is controversial in theory.However,classifying some crimes in the fields of public security and market economy as abstract dangerous crimes is recognized by some scholars who agree with this theory.The third part makes a typological analysis of two types of crimes.After the delineation of abstract dangerous criminal scope that is recognized by most part of scholars,this article makes a typological analysis about dangerous driving crime(which is the representative of misdemeanor),and security crimes of selling or producing poisonous or harmful food as well as producing or selling fake drugs.Through the research of thousands of selected cases and processing,analysis,induction and conclusion of the information among them,we shall on one side prove the positive effect during the application of abstract dangerous crime,and on the other side exam the defects of it in judicial practice.The third chapter is the rational evaluation of abstract dangerous crime.It is undeniable that abstract dangerous crime is a double-edged sword,the crime’s functional advantage is in the meanwhile the part which disapproved by some scholars.The application of abstract dangerous crime for some part has possibility of infringing human right.Therefore,it is necessary to envisage the provisions of abstract dangerous crime in criminal law and combine normative analysis with empirical research,so as to review the crime’s problems in legislation regulation while affirming it.Abstract dangerous crime has an advantage that other crimes do not possess,which is the crime could be convicted after the offender conducts an abstract dangerous behavior.The positive effect or uniqueness of this advantage is that it enhances the guiding function,which not only changes the innate concept among people,brings more convenience to judicial personnel,and saves the judicial costs,but also more conducive to the comprehensive protection of human rights and safeguarding people’s legitimate rights and interests.In the same time,the uniqueness of abstract dangerous crime causes various defects,such as deficiency of crime charges,dependence on strict administrative law enforcement while applying a certain crime,improper cohesion of administrative law and criminal law,and mitigation of sentencing which leads to lower cost of crime.For this reason,in current criminal law,legislators have adopted a more conservative attitude towards the scope of legislation and the setting of statutory punishments for abstract dangerous crimes.As to current legislation,the regulation scope of abstract dangerous crime is still too narrow.The fourth chapter is the legislative regulation of abstract dangerous crime.In the last part of this article,combining the concrete circumstances of the legislation and judicial practice of abstract dangerous crimes in China,under the principle of balance between crime and punishment as well as the principle of legality,we put forward some suggestions about legislative restrictions on abstract dangerous crime.The application of abstract dangerous crime not shall only be limited within crimes of public interest,but also be strictly restricted on certain types and shall not be expanded randomly.The legitimacy of legislation on abstract dangerous crimes of preparatory phase,recidivism and negligence is still under debate.By referring to foreign legislation,under the premise of respect on legislation model of abstract dangerous crime,it is a useful attempt on the correction of this legislation model by applying disciplinary and notification system and creating special discontinuation of offence.Statutory sentence shall be established according to types of legal interests,and shall not be too light,otherwise easy conviction and light sentence would make statute a fashion white elephant and reduce the deterrent force of criminal law.As to the specific type of crime,it is necessary to apply abstract dangerous crime in the field of environment criminal law to increase the force on environment crime,and maximize protection of legal interests of environment resources.Considering the establishment of abstract dangerous crime is based on violation of administrative laws and regulations,during the determination of abstract dangerous crime,it is easy to occur the situation that boundary between criminal act and illegal act is unclear.In order to avoid the result of reducing charges of criminal offences into normal illegal acts,it is necessary to resolve the problem of improper cohesion between these two laws,and define the boundary of offences between criminal law and administrative law.Through the above ideas,after regulating the abstract dangerous behavior in legislation,a very important problem must be faced.Abstract dangerous crime can be easily convicted,but if there is no risk of damage to legal interests,how to choose the measure of decriminalization? At present stage,no need to approve other restriction measures such as rebuttal,“Proviso” is the best way of decriminalization under the quantitative legislation model of criminal law in China. |
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