Research On Aviation Criminal Law

In order to cope with the risks of civil aviation industry that have occurred and are happening,ICAO held a number of meetings to revise the original criminal law conventions in international civil aviation,which have formed a modern framework of criminal law conventions in international civil aviation,in the hope of effectively preventing and punishing the crimes in civil aviation that have changed and are changing,and further safeguarding and ensuring the safety of international civil aviation.In recent years,in the field of China's civil aviation,some violent crimes with terrorism characteristics targeting aircrafts and airports have also occurred,such as Hetian hijacking in Jun.29 which almost caused a plane crash and casualties,arson on Shenzhen Airlines Flight ZH9648,explosion at Beijing Capital Airport in Jul.20 and so on.In addition,there are a variety of incidents that endanger the safety of civil aviation,such as the spread of bomb threats of flights,operating the black flight of unmanned aircrafts,the emergencies of fans chasing stars at Shanghai Hongqiao Airport and Beijing Capital Airport,occupied seats,occupied aircrafts and the invasion of aircrafts by passengers,opening the emergency hatch and throwing coins at the aircraft engine without permission,which have attracted the public attention.The modernization of the criminal law conventions in international civil aviation and the frequent occurrence of many incidents endangering the safety of civil aviation make the existing aviation criminal law of our country face great challenges.It seems that there are more and more embarrassing situations when dealing with the risks of modern civil aviation industry.Based on this,this paper takes aviation criminal law as the research object,enriches the dogmatical connotation of aviation criminal law by studying the basic concept,protection of legal interests,types of crimes and incomplete crimes patterns.Being the particularity of risks in aviation industry and combining the development status of aviation industry,this paper also clarifies the value of safety must be superior to the value of freedom in aviation criminal law by analyzing the basic value of aviation criminal law,which makes the concept of preventive criminal law embodied in aviation criminal law.The full text is divided into five chapters.Chapter ? is an overview of aviation criminal law.Firstly,based on three elements which are aircraft,atmospheric and the scope of activities of aircraft,the concept of civil aviation is discussed,and it is clearly pointed outthat civil aviation in the first chapter refers to “civil transport activities conducted by aircraft in the atmosphere or air space”.The study of the concept of aviation plays an important role in guiding,limiting and predicting aviation criminal law.Secondly,this chapter defines the concept of aviation criminal law scientifically.Based on the need of defining the concept of aviation criminal law,this chapter briefly introduces the evolution of international aviation criminal law and the legislative evolution of domestic aviation criminal law.Professor Zhao Weitian for the first time put forward the concept of aviation criminal law in China,who defined aviation criminal law from the perspective of international law,and then Professor Huang Jianqiu proposed the concept of international aviation criminal law,who defined aviation criminal law from the perspective of international law combined with domestic law.Whether it is the concept of aviation criminal law proposed by Professor Zhao or by Professor Huang,in fact,they are the aviation criminal law in the sense of international criminal law,which can be collectively called international aviation criminal law.However,the concept is too narrow.Accordingly,this chapter redefines the concept of aviation criminal law.Finally,this chapter separately explain the relationship between aviation criminal law,traffic criminal law and anti-terrorism criminal law is analyzed.The former belongs to the subsidiary relationship,namely,aviation criminal law is attached to traffic criminal law,and the latter belongs to the cross relationship,namely,there is a cross relationship between aviation criminal law and anti-terrorism criminal law.Chapter ? is the value of aviation criminal law.Firstly,this chapter analyzes the value structure of aviation criminal law.The safety value and the freedom value are two important values of aviation criminal law.Based on the analysis of the connotation of the safety value and the freedom value in different levels,this chapter explains the connotation of the safety value and the freedom value in aviation criminal law.Secondly,this chapter is to demonstrate the value conflict of aviation criminal law.There are contradictions and conflicts between the safety value and the freedom value in aviation criminal law.The safety value is eroding the freedom value.By revealing the realization of the safety value and the compromise of the freedom value in aviation criminal law,this chapter points out that aviation criminal law is a kind of safety criminal law under the risk background of civil aviation industry,which is guided by the preventive criminal law.Thirdly,this chapter demonstrates the value coordination of aviation criminal law.the safety value is the primary value and the basic value of aviation criminal law,and the freedom value is the ultimate value and the purposeful value of aviation criminal law.Although the safety valueis superior to the freedom value,it does not mean abandoning the freedom value,and both of them should be taken into account at the same time.By setting up some special provisions between the safety value and the freedom value of aviation criminal law to measure the balance point to alleviate the conflict,it can realize the coordinated development of the safety value and the freedom value of aviation criminal law.Chapter ? is the legal interests of aviation criminal law.Firstly,this chapter combs the historical evolution and the development state of the concept of legal interest.Based on this,it is proposed to establish the legal interests of civil aviation safety as the legal interests of aviation criminal law.The legal interests of civil aviation safety established in this chapter has certain inherent uniqueness,which not only has the dual nature of materialization and spiritualization of the general concept of legal interests,but also has a special structure which integrates individual legal interest and collective legal interest.Secondly,this chapter discusses the function of the legal interests of civil aviation safety,which includes the legislative function of the legal interests of civil aviation safety and the judicial function of the legal interests of civil aviation safety.Among them,the former embodies the legislative guidance function and the crime classification function of the legal interests of civil aviation safety,while the latter embodies the judicial interpretation function and the illegality evaluation function of the legal interest of civil aviation safety.Finally,this chapter analyzes the protection path of legal interests of civil aviation safety.Based on international aviation criminal law,this chapter holds that the traditional way to protect the legal interests of civil aviation safety is the specific dangerous crime belonging to the consequential crime,while the new way to protect the legal interests of civil aviation safety is the abstract dangerous crime belonging to the behavioral crime.In addition,the new way to protect the legal interests of civil aviation safety also includes the legal person dangerous crime,which is based on the above two types of dangerous crime,and combined with the civil aviation crime subject from one natural person to two natural person legal person.Chapter ? is the types of crimes regulated by aviation criminal law.Firstly,this chapter analyzes the relationship between the protection of the legal interests of civil aviation safety and the types of crimes regulated by aviation criminal law.Based on the purpose of the aviation criminal law regulating the crimes in civil aviation,which is to protect the legal interests of civil aviation safety.This chapter analyzes the relationship between the crimes in the field of civil aviation and the legal interests of civil aviation safety from three aspects,including the basic aspects of the crimes in civil aviation,thenature of the crimes in civil aviation and the elements of the crimes in civil aviation.Secondly,this chapter compares the crimes in civil aviation regulated by the international civil aviation conventions and the aviation criminal law of foreign countries.Specifically,it is a comparative analysis between the crimes of illegal hijacking,the crimes of endangering flight safety,the crimes of infringing airport safety,the crimes of illegally using aircraft and the crimes of threatening by the international civil aviation conventions and the aviation criminal law of foreign countries.Thirdly,it is to interpret the crimes in civil aviation regulated by the aviation criminal law.The crimes regulated by China's aviation criminal law are been divided into the crimes of terror or dangerous activities endangering civil aviation safety,the crimes of destroying public tools and facilities endangering civil aviation safety,the crimes endangering civil aviation safety by dangerous methods,the crimes endangering civil aviation safety in violation of regulations on gun and ammunition management,the crimes endangering civil aviation safety in violation of regulations on safety management,the crimes endangering civil aviation safety in violation of regulations on safety management and the crimes endangering civil aviation safety in disruption of public order.This chapter mainly analyzes the above-mentioned the crimes in civil aviation from the nature and the elements.Taking the crime of hijacking aircraft as an example,there are two views on the nature of the crime of hijacking aircraft:one is the theory of dangerous offence,the other is the theory of behavioral offence.This chapter holds that the crime of hijacking aircraft in our country is an behavioral offence,and also analyzes the elements of the crime of hijacking aircraft from the perspectives of aircraft's attributes and state and means of conduct.Finally,some legislative suggestions are put forward to perfect the aviation criminal law of our country regulating the crimes in civil aviation.This chapter points out the obviously shortcomings of the aviation criminal law in regulating the crimes in civil aviation,puts forward to add threat crime,compulsory crime and the crime of threat to the civil aviation safety,the crime of illegally manufacturing,trading,transporting,storing biological weapons,chemical weapons,nuclear weapons,etc and the crime of endangering flight safety by false information,and expand the crime of hijacking aircraft and the crime of major flight accidents.Chapter ? is the incomplete crime patterns regulated by aviation criminal law.Firstly,this chapter explains the relationship between the legal interests of civil aviation safety and the incomplete crime patterns of aviation criminal law.The purpose of punishing the incomplete crime patterns of civil aviation crime by aviation criminal law is to expand the scope of aviation criminal law punishment beyond regulating civil aviation crime in orderto realize the comprehensive protection of the legal interests of civil aviation safety.Secondly,this chapter analyzes the punishment basis of the incomplete crime patterns regulated by aviation criminal law.The prepared crimes in civil aviation belong to the subordinate civil aviation crime preparation.Like the independent civil aviation crime preparation,it is to realize the early protection of some major civil aviation safety legal interests.The punishment basis of civil aviation attempted crimes in China needs to combine the objective attempted theory with the subjective attempted theory.That is to say,the subjective criminal intention of the actor and the objective danger of the act to the legal interest of civil aviation safety are organically combined.The third is to analyze the punishment scope of the incomplete crime patterns regulated by aviation criminal law.The position of the punishment scope of prepared crimes in civil aviation include the negative position,the positive position and the compromise position.China's criminal law takes a positive position.However,in fact,not all prepared crimes in civil aviation need to be punished.This chapter holds that the punishment scope of prepared crimes in civil aviation should be strictly limited by the standard of infringing upon serious legal interests of civil aviation safety.The punishment scope of attempted crime in civil aviation includes the generalization,the enumeration and the synthesis.The criminal law of our country adopts the generalization.In view of the abstractness and fuzziness of the generalization,this chapter suggests adopting the theory of constitutive requirements,centering on the constitutive requirements,to make a standard judgment on the punishment of attempted crimes in civil aviation.Finally,this chapter discusses the identification of the beginning of crimes in civil aviation.With regard to the determination of the preparatory act of crimes in civil aviation,taking the crime of hijacking aircraft as an example and based on the need of protecting the legal interests of civil aviation safety,the intention expression of the crime of hijacking aircraft and the conspiracy of hijacking aircraft can be regarded as the preparatory act of the crime of hijacking aircraft.As for the determination of the beginning of crimes in civil aviation,the chapter holds that the finalization of the constitutive elements,the danger of infringing upon the legal interests and the subjective intention of crime are three very important elements in the determination of starting a crime.Taking the crime of hijacking aircraft and the crime of destroying vehicles(aircraft)as the typical representative of crimes in civil aviation,this chapter starts to identify them.As far as the crime of hijacking aircraft is concerned,the chapter supports the former act theory,that is,the first act of the constitutive elements of the crime of hijacking aircraft is the act by violence,coercion or other methods.Therefore,when the perpetrator begins to commit theact by violence,coercion or other methods,it can be regarded as the starting standard for identifying the crime of hijacking aircraft.In addition,in special circumstances,the determination of the crime of hijacking aircraft should be made in advance.As far as the crime of destroying vehicles(aircraft)is concerned,Based on the utility infringement theory,this chapter analyzes the beginning of throwing coins at aircraft engines.As for the unsuccessful of the crimes in civil aviation,this chapter supports the criminal constitution theory.Taking the crime of hijacking aircraft and the crime of fabricating and deliberately disseminating false terrorist information as examples,the crime of hijacking aircraft without success supports the control theory and the control theory strictly abides by the crime constitution theory;the crime of fabricating and deliberately disseminating false terrorist information without success is the result of the constituent element of serious disturbance of social order.