Research On The Potential Damage Offense In The Context Of Chinese Criminal Law

The potential damage offense, which is few in criminal legislation, is of great value in the study of theory of criminal law because of basic theories it involves: the nature of illegality, the connection between the establishment of the crime and the completion of the crime, the distinction between the consequential offense and the behavioral offense, the correspondence between the subjective aspect of crime and the objective aspect of crime, etc. In the modern society, the legislator is forced by the drastic increase of danger to use the legislative mode of the potential damage offense (the abstract one in particular). And the judicial practice is also frequently faced with the problem of the danger judgment. Therefore, research on the potential damage offense has become a hot point in the interpretation of criminal law world widely. But this hot point turns out to be very ambiguous and hard for in-depth discussions in Chinese criminal law. On the one hand, the theory research itself on the potential damage offense is weak discussing the independent value of the potential damage offense only from the angle of the completion of the crime without considering the type of crime. On the other hand, as constructed under a different system of criminal legislation and crime theory, the theory research on the potential damage offense in China has a conflict with that borrowed from German and Japanese criminal law. Nevertheless, we have to admit that German and Japanese criminal law is the source of many concepts in the potential damage offense in the theory of criminal law in China, such as the actual damage offense and the potential damage offense, the concrete potential damage offense and the abstract potential damage offense, the negligent dangerous crime,etc. Thus, there is no doubt about using German and Japanese criminal law for reference in Chinese research on the potential damage offense. Based on this point, the dissertation is discovering real problems of the potential damage offense by using the exploration of the potential damage offense in German and Japanese criminal legislation, judiciary and theory research, and tends to provide my answer to it within Chinese criminology system by relying on criminal legislation and specific judicial practice in China. The dissertation is divided into four parts.Part one will sum up legislation ideas of the potential damage offense by comparing and analyzing different legislations of the potential damage offense in German and Japanese criminal law and Chinese criminal law. The legislation of the potential damage offense in German and Japanese criminal law has a long history and widely exists in various law fields dealing with problems from simple drunken driving to organized crime. Moreover, by using the legislation word 'danger', it can give a clear division of the crime type between the concrete potential damage offense and the abstract potential damage offense. But, in China, the crime type causes many controversies in the academic circle due to the limited fields of the potential damage offense, which mainly focuses on public danger crime, the food and drug crime and obstruction of public health crime, and the vague division between the concrete potential damage offense and the abstract potential damage offense. Yet, on the whole, there is an growing trend in the legislation of the potential damage offense both in German and Japanese criminal law and Chinese criminal law. By analyzing this trend, two attributable facts are found:for one thing, it is because that the potential damage offense itself has specific value in regulating crimes (especially when concerning major public legal interest); for another, it stems from the misunderstanding of'risk society'put forth by jurisprudence to sociology.'Risk'in'risk society'is completely different from 'danger'in traditional criminal law, thus blindly expanding the potential damage offense (the abstract potential damage offense in particular) is not allowed.Part two will sum up basic connotation, denotation and system position of the potential damage offense by comparing and analyzing different theories of the potential damage offense in German and Japanese criminal law and Chinese criminal law. According to the traditional theory of Chinese criminal law, the potential damage offense is one type of the completion of the crime like the consequential offense and the behavioral offense, which is just the main reason impeding the in-depth development of the theory of the potential damage offense. As a basic type of crime, the potential damage offense has different constitutive requirements, not just different completion standard, from the actual damage offense. By using'legal interest danger', a rational core of German and Japanese criminal law, for reference, the concept of the potential damage offense should be redefined as statutory one to fit into Chinese criminal law, and based on the fact whether behavior and its consequence happen simultaneously, the connection between the consequential offense and the behavioral offense can be set up--the concrete potential damage offense belongs to the consequential offense while the abstract potential damage offense belongs to the behavioral offense.Part three will analyze the type of crime and the concrete structure of the potential damage offense in Chinese criminal law. Negligent dangerous crime, existing in German and Japanese criminal law and in accordance with the development of the normative structures of criminal law and protection of legal interests, is hard to be expanded due to the current reality of China's national conditions. Article330, Article332and Article337of the Criminal Act are "not typical" legislative of negligent dangerous crime, which "dangerous" requirements are to solve the problems identified on the "real harm". Deliberate dangerous crime can be divided into the concrete potential damage offense and the abstract potential damage offense, which normative structures are completely different. Danger in the concrete potential damage offense is real and can't be replaced by general dangers like'the act to execute a crime', but it can be stratified by danger judgment rules in German and Japanese criminal law. The abstract potential damage offense is a legislative presumption danger, a crime type in which the implementation of the behavior is replaced by the potential danger of the intended behavior, therefore it can't be judged as general'substantialized'by simply using Article13of the Criminal Act.Part four is a study on the suspended form of the potential damage offense in Chinese criminal law. As a crime type set by specific provisions of the criminal law, the potential damage offense has two forms--the completion form and the incompletion form. But a furious debate about the form can't be neglected in China because of the unique structure of the potential damage offense and of the provision model of the potential damage offense, its corresponding actual damage offense and negligent crime in Chinese criminal law. The potential damage offense, instead of being a statutory completion of the crime, is the completion of the crime in itself. The relationship between the potential damage offense and its corresponding actual damage offense is the one between basic crime and aggravated crime. The completion criterion is'the appearance of legal interest danger', before which the incompletion form of the potential damage offense still has possibilities, but once appear, the crime is completed without the case of 'termination after accomplished'.