Research On The Judicial Boundary Of The Crime Of Endangering Public Security By Dangerous Means

The crime of endangering public security by dangerous means is the most characteristic crime in China.Its establishment and application have always been the focus of theoretical and practical disputes.With the emergence of endless forms of crimes against public security,the judicial application of this crime is expanding.Although this practice is conducive to protecting the legal interests of public security and has the effect of punishment and deterrence to a certain extent,it is in danger of gradually becoming a "pocket crime".Under the existing legal system,how to define the boundary of the crime of endangering public security by dangerous means is obviously not a problem that can be solved simply by matching the facts of the crime with the constituent elements.The abstraction and fuzziness of the legislative provisions,coupled with the arbitrary interpretation of the judiciary,have resulted in the continuous expansion of the boundary of this crime.Therefore,this paper selects a total of 4,288 first-instance judgment documents of crimes against public security by dangerous means in the national court system from 2011 to 2020 as basic analysis samples,among which 346 criminal judgment with different lawsuits and judgments and 271 criminal judgment with different judgments in the same case are taken as special analysis samples.It adopts the formal judgment and substantive judgment under formal interpretation,and uses the theoretical interpretation method under substantive interpretation,follows the routine of value speculation and logical deduction to seek conclusions,and tries to systematically solve the problem of delimiting the boundary of this crime.In addition to the Introduction,this paper is divided into five chapters,a total of about200,000 words.The Introduction focuses on the background,theoretical research status and judicial application status of this paper,and expounds the research contents,research methods,basic positions and innovations of this paper.Firstly,it briefly explains the problems existing in the judicial application of this crime by introducing cases,and analyzes the importance and necessity of studying the boundary of the crime of endangering public security by dangerous means.Secondly,this chapter combs and analyzes the existing research results completely,fully grasps the relevant research situation in the theoretical circle,avoids repetitive research,and combs and analyzes the shortcomings,gaps and defects of the existing theories,aiming to prove that the paper is necessary for research.Thirdly,the scope,position and method of this study are elaborated,the research content and research ideas are explained from a macro perspective,and the innovation of this study is summarized.The first chapter,the practice pattern and problems of the judicial application of the crime of endangering public security by dangerous means,clarifies the problems and reasons of judicial application of the crime of endangering public security by dangerous means,and lays the foundation for the full-text research.First of all,through the analysis of the whole sample of all the first-instance judgments of this crime in the past ten years,the special sample of judicial precedents with different lawsuits and judgments,and the special sample of judicial precedents with different judgments in the same case,combined with the analysis and statistics of the current situation in the field of judicial application,it is found that there are differences in the determination of "other dangerous methods" in judicial application,which leads to confusion in the application of charges,improper expansion of application leads to the risk of infringement of freedom,and different judgments in the same case lead to the imbalance between crime and punishment.The judicial application of this crime generally presents the current situation of expanding the scope of judicial application and chaotic judicial adjudication.Secondly,it systematically demonstrates that the causes of the above problems are mainly caused by social,legislative and judicial reasons.The concrete manifestations are as follows: at the social level,the interference of public opinion and the trend of thought of severe punishment are on the rise;at the legislative level,there is a trend of unclear legislation and continuous expansion of legislative models;at the judicial level,there are some factors,such as confusion in adjudication and improper interpretation of criminal policies.This chapter mainly makes an overall study on the current situation of judicial application,practical problems and reasons for expansion,which lays a practical foundation for the full-text systematic study of the boundary problem of this crime.The second chapter clarifies the theoretical basis of delimiting the judicial boundary of the crime of endangering public security by dangerous means-social value,policy adjustment and legal interest regulation.Firstly,by analyzing the internal relationship between risk society and social defense,this chapter clarifies the necessity of moderate expansion of the crime of endangering public security by dangerous means,and demonstrates the influence of social defense concept on the crime circle.Secondly,from the perspective of criminal policy,it demonstrates the adjustment function of criminal policy on the boundary of this crime,especially the criminal justice policy of combining leniency with severity has a flexible adjustment function on the boundary of this crime: appropriately expand the scope of the boundary of this crime and restrain the bottomless expansion of the boundary.Thirdly,it defines the boundary from the theory of legal interest protection.The necessity of public security legal interest protection directly affects the expansion or contraction of the boundary scope of this crime.This chapter systematically demonstrates the protection needs of public security legal interests and individual legal interests,and explores the limit regulation of public security legal interests protection lies in the balance point of their legal interests protection,that is,the necessity of public security legal interests protection is the value center of boundary definition.This chapter mainly discusses the core elements that affect the judicial application of this crime,and systematically expounds the internal value and theoretical basis of this crime boundary delimitation from three aspects of sociology,criminal policy and legal interest theory.At the same time,it fully demonstrates the necessity,appropriateness and limitation of expansion.The third chapter puts forward the interpretation method of delimiting the judicial boundary of the crime of endangering public security by dangerous means--making formal judgment and substantive judgment through the literal interpretation of formal interpretation and the theoretical interpretation of substantive interpretation.Firstly,explore the application of formal interpretation in the delimitation of the judicial boundary of this crime.This chapter examines the basic theory of formal interpretation,and explores the basic theory of literal interpretation method and judicial application logic under formal interpretation.This chapter studies the limits of formal judgment and substantive judgment of this crime,and constructs the path of delimiting the boundary of this crime under the formal interpretation,which lies in the limitation of dangerous state.From two aspects of formal judgment and substantive judgment,this paper makes judicial judgment on dangerous state,improves theoretical research on dangerous state,and constructs judicial cognizance rules of dangerous state.Secondly,explore the application of substantive interpretation in the delimitation of the judicial boundary of this crime.This chapter examines the basic theory of substantive interpretation,and explores the basic theory of theoretical interpretation method and judicial application logic under substantive interpretation.This chapter makes a theoretical analysis of the theoretical interpretation method under the substantive interpretation,and puts forward the hierarchical interpretation theory with the purpose interpretation as the core,and makes a substantive interpretation of the constitutive requirements of this crime.This chapter clarifies that under the clear substantive explanation,the path of delimiting the boundary of this crime lies in the limitation of the elements of crime quantity,and systematically demonstrates the concept,content and boundary limitation standard of the elements of crime quantity.This chapter fully demonstrates that the substantive judgment of dangerous state under formal interpretation and the punishment necessity of crime quantity elements under substantive interpretation are essentially the same goal,which are the basic paths for delimiting the judicial boundary of this crime.The fourth chapter explores the boundary delimitation of "other dangerous methods" of the crime of endangering public security by dangerous means.First of all,the existing theory of "other dangerous methods",the current situation of judicial determination and the judgment of crime quantity elements are combed and analyzed,and the general situation of "other dangerous methods" is studied from the perspectives of theory and practice.Secondly,the specific conditions and standards to be followed in the identification of "other dangerous methods" are clearly put forward.From the disputes in judicial cases,this paper finds out the reasons for the confusion in judicial application,and further determines that the core element of "other dangerous methods" judgment is the element of crime quantity,and then systematically analyzes the element of crime quantity through the aspects of influencing factors,type analysis and definition standards of the element of crime quantity.Finally,it is clearly pointed out that the judicial definition standard of "other dangerous methods" is the dual danger standard of behavior danger and result danger.This chapter demonstrates the connotation,extension and essence of "other dangerous methods" from the behavioral attributes and result attributes such as the inevitability of results,the equivalence of dangers,the urgency of time,and the restriction of the bottom,This chapter makes a comprehensive evaluation of the behavior risk standard and the result risk standard,demonstrates the necessity and legitimacy of the dual risk standard,and then clarifies that the judgment standard of "other dangerous methods" is the dual risk standard,and puts forward the specific judicial application rules of the dual risk standard.At the same time,according to the pattern of judicial practice,this chapter makes a typological study on "other dangerous methods",and sorts out the judicial application rules of dual danger standards for various specific dangerous methods.The fifth chapter clearly delimits the scope of "public security" of the crime of endangering public security by dangerous means.First of all,it systematically demonstrates the existing theoretical research and practical identification of "public security",discusses the shortcomings in the theoretical research of "public security" and the differences in judicial application,and further clarifies the concept,connotation and extension of "public security" by using interpretation methods such as literal interpretation,system interpretation and purpose interpretation.Secondly,it puts forward the specific conditions and standards for the identification of "public security".Through the analysis of the common forms and judgment factors in the judicial judgment of "public security",this paper obtains the matters needing attention in the judicial determination of "public security",and puts forward the quantitative standards for the delimitation of the scope of "public security".Finally,it is clear that the core standard of judicial judgment of "public security" lies in the conclusion that "most people are safe".We should combine the judicial identification of "public security" with the legal interests of public security,and make clear the relationship between "public security" and "other dangerous methods",and the relationship between "public security" and "security".It is clear that the core essence of public security lies in the personal safety of the majority,bringing the specific majority into the category of "public",and taking the safety of public and private property as an auxiliary element for the identification of "security".