Research On The Criminal Legislation Of Dangerous Crimes

With the rapid development of science and technology,the standard and quality of social living have been continuously improved.At the same time,uncertain risks in society have emerged one after another.As the dark side of society,illegal and criminal activities are also "upgrading",and new types of crimes are emerging as well.The traditional criminal law system based on the premise of causing actual harm can no longer deal with the "renewal" of crimes under the rapid development of society.In this context,the criminal law with dangerous crimes as the main type intervenes in the early legislative model,which has become an important way to protect legal interests in advance.The establishment of dangerous crimes is conducive to the early protection of legal interests and objectively meets the needs of social development.However,the basis for the punishment of dangerous crimes is the dangerous state of infringement of legal interests caused by the behavior of the perpetrator.Compared with the result of actual harm,the dangerous state is abstract.No matter how great the legal interests pointed to by this dangerous state,or how urgent the transformation of the dangerous state into the actual harm result is,the dangerous state in dangerous crimes is essentially a possibility.Therefore,criminal legislation for dangerous crimes should be done cautiously.However,our country's criminal legislation activities in recent years still show a trend of expansion of dangerous crimes.Criminal legislation for specific dangerous crimes and abstract dangerous crimes is increasing,and criminal legislation for negligent dangerous crimes is also promoted.Criminal legislation for dangerous crimes may lead to excessive expansion of the power of punishment,may violates human rights and the basic principles of criminal law and theories of criminal legislation.Starting from the basic theory of the criminal law of dangerous crimes,this article systematically analyzes the concept of danger in dangerous crimes;while affirming that the criminal legislation of dangerous crimes is legitimate and reasonable,it also combines the process and status of criminal legislation on dangerous crimes,and points out that the current criminal legislation is active and showing an expanding trend.The expansion of criminal legislation for dangerous crimes is not only affected by external factors,but also driven by endogenous reasons;the expansion of criminal legislation for dangerous crimes has obvious disadvantages and should be moderate.Thus,this article tries to build a categorized dangerous crime constitutive element,standardize specific dangerous crimes and abstract in terms of the division of criminal legislation for dangerous crimes,the criminal legislation that strictly limits abstract dangerous crimes,the criminal legislation that excludes dangerous crimes from negligence,etc.,.In addition to the introduction,this article is divided into five chapters.The first chapter describes the basic theory of criminal legislation of dangerous crimes from three aspects: the basic concept of dangerous crimes,the concept of danger in dangerous crimes,and the legislative validity of criminal legislation of dangerous crimes.Dangerous crimes are not clearly stipulated in the criminal law.The concept is mainly derived from the classification of crime types in the criminal law theory.Corresponding to actual-harm crimes,dangerous crimes use the danger of infringement of legal interests caused by illegal acts as the base of penalty.According to whether the danger caused by harmful acts to legal interests is actually concrete,dangerous crimes are divided into concrete dangerous crimes and abstract dangerous crimes.In order to clarifies the nature and connotation of the danger in dangerous crimes,this chapter starts from the concept of danger in social life and the concept of danger in the general provisions of the Criminal Law.The concept of danger in social life is the danger that people can perceive.According to different sources of danger,they can be divided into natural dangers and dangers from human activities.In the early human society,the dangers from nature seriously affected the survival and development of human beings;with the advancement of science and technology,the dangers caused by human activities cannot be ignored and are increasing day by day,which has become a danger that threatens the safety of human beings at all times.For the many dangers from the natural world,human beings can rely on scientific and technological methods to prevent and respond effectively,and for the dangers caused by human behavior,people generally adopt the form of formulating rules and systems to regulate people's behaviors.To prevent the danger caused by human and its possible serious consequences,the strictest rule is criminal law.Although dangerous crime is not a concept expressly stipulated in the law,the general provisions of criminal law clearly contain the concept of "danger".There are three main occasions: one is the "danger" in emergency avoidance;the other is the penalty in the form of uncompleted crimes;the third is the "danger" in sentencing and execution.The "danger" in emergency avoidance is a danger in a broad sense,including dangerous behaviors from people in the sense of criminal law,as well as dangers in the natural world.The "danger" that serves as the basis for the punishment of uncompleted crimes is the danger of acts infringing on legal interests.Different from the German and Japanese criminal laws,there are no unfinished forms of crimes in the sub-rules of our country's criminal law.Similar to the dangerous crime theory,for uncompleted crimes including preparations for crimes,suspension of crimes,and attempted crimes,the punishment is based on the danger of infringement of legal interests caused by the behavior,not because of the perpetrator's subjective danger.The "dangers" in the system of sentencing and penalty enforcement in the general provisions of the criminal law,including the basis for heavy punishments for repeat offenders,and the basis for probation and parole,are all personal dangers of the perpetrator.Different from the danger in social life and the danger in the general provisions of the criminal law,the concept of danger in dangerous crimes is complicated.First of all,the danger in dangerous crimes is behavioral danger.As a basic proposition of criminal law,the theory of criminal responsibility,that is,whether the punishment is based on the perpetrator's danger or the behavioral danger,is also an historical fierce argument.Criminal law research centers on behavior,not perpetrators,and the basis of punishment can only be criminal behaviors rather than perpetrators' personal dangers.The danger in dangerous crimes is not the danger of the perpetrator,but is essentially the danger of the behavior,that is,the danger of actual harmful results caused by the behavior.Secondly,the danger in dangerous crimes is the possibility of actual harm.How to understand this possibility requires the guidance of philosophy in methodology.There is a dialectical and unified relationship between the danger in dangerous crimes and the result of actual harm;the danger in specific dangerous crimes corresponds to the realistic possibility in philosophy,the dangers in abstract dangerous crimes corresponds to the abstract possibilities in philosophy.Thirdly,the dangerous state of dangerous crimes is the result of infringement of legal interests,which belongs to the result of crime in the sense of criminal law.The essence of crime is the infringement of legal interests,and there is no crime if the infringement of interests is not possible;the result of criminal law should not be limited to the actual damage consequences,but also include the dangerous state of infringement of legal interests.This dangerous state belongs to the category of results.In other words,dangerous crimes are not behavioral offenders but,just like actual-harm crimes,they are all consequential offenses.The establishment of dangerous crimes is conducive to responding to the need for preprevention of danger and the imputation of the source of danger,and the criminal legislation on dangerous crimes is reasonable and legitimate.The criminal legislation of dangerous crimes is based on the purpose of protecting legal interests.The function and task of criminal law is to protect legal interests.When actual-harm crimes cannot satisfy the protection of legal interests,the mode of dangerous crimes,especially abstract dangerous crimes,can protect legal interests well.The criminal legislation of dangerous crimes embodies the preventive function of criminal law.The criminal legislation of dangerous crimes advances the intervention of criminal law before the damage occurs,focusing on preventing potential risks target on legal interests.At the same time,the sanction effect of penalties in legislation is conducive to strengthening social awareness.The criminal legislation of dangerous crimes considering the objective reality of society,in the face of increasing social dangers and the public's overall anxiety,the shortcomings of the traditional criminal law system have become increasingly prominent,and the criminal legislation for dangerous crimes conforms to the needs of social reality.In addition,under the background that the party and the state put the protection and improvement of people's livelihood in a prominent position,the criminal legislation of dangerous crimes has played an active role in the field of "national livelihoods" such as food and medicine,echoing the concept of people's livelihood criminal law.The second chapter describes the current status and trends of criminal legislation for dangerous crimes by systematically summarizing the process and status of criminal legislation for dangerous crimes in our country.According to the characteristics of dangerous crimes,we can conclude that the current criminal legislation for dangerous crimes is expanding.From the perspective of the criminal legislation process,after the founding of the People's Republic of China and before the criminal law was enacted in1979,there has no unified criminal code,lacked systematic regulations on crimes,and had no criminal legislation for dangerous crimes.After the enactment of the criminal code in1979,a system of general rules and sub-rules of the criminal law was established.Legislators have devised criminal charges for penalties for dangerous situations,mainly in counter-revolutionary crimes and crimes against public safety.After the promulgation of the criminal law in 1997 and several amendments to the criminal law,the number of dangerous crimes has continued to increase.According to the general theory of dangerous crimes,this chapter comprehensively sorts out the crimes in the current criminal law,and combines the classification standards of dangerous crimes to further divide dangerous crimes into specific dangerous crimes and abstract dangerous crimes.Through generalization,there are currently 54 dangerous criminal names in the criminal law,including 21 specific dangerous crimes and 33 abstract dangerous crimes.Through an in-depth analysis,this chapter summarizes the characteristics of the current criminal legislation on dangerous crimes: First,the dangerous crimes are relatively concentrated,54 dangerous crimes are mainly concentrated in the first three chapters of the criminal law.The number of abstract dangerous crimes is significantly more than that of specific dangerous crimes,reflecting that legislators hope to actively protect the interests of the social society and citizens' rights through early intervention in the criminal law.Second,some dangerous crimes correspond to actual-harm crimes.Among them,there are legislative models that separate dangerous crimes and actual-harm crimes,such as Article114 and 115;there are also legislative models that place dangerous crimes and actual-harm crimes in the same article,such as Article 141.Third,the design patterns of dangerous crimes are different.Abstract dangerous crimes are mostly expressed as the completion of certain behaviors;specific dangerous crimes often adopt the design pattern of "behavior +enough to cause danger" or "behavior + not causing serious consequences" or "behavior +realistic danger".At present,criminal legislation has a clear tendency to expand.On the one hand,penalties have moved forward in criminal legislation,dangerous crimes,behavioral offenders have replaced actual-harm crimes as the main form of adding new crimes;on the other hand,the object of public security punishment becomes the object of punishment.Thus,the criminal legislation as a whole has become active and has embarked on the path of criminalization.In the context of active criminal legislation,a large number of dangerous crimes have been set up in the criminal law in the form of amendments to the criminal law.The "Criminal Law Amendment(11)" that came into effect in March 2021 has clearly added 6 dangerous crimes.As dangerous crimes,especially abstract dangerous crimes,continue to increase,non-dangerous crimes have been modified or partially modified as dangerous crimes,the scope of application of original dangerous crimes has been further expanded,the theory of negligent dangerous crimes has been advocated in the theory.The third chapter mainly discusses the reasons and disadvantages of the expansion of criminal legislation for dangerous crimes.On the one hand,the expansion of criminal legislation for dangerous crimes has been affected by the activation of international criminal legislation.At present,the criminal legislation of various countries in the world generally presents a trend of pre-protection of legal interests,and the scope of criminal punishment is continuously expanding.Japan has carried out active criminal legislation activities since the 1950 s,showing the trend of "early intervention of criminal law" and "strict punishment of criminal law".In terms of criminal legislation for dangerous crimes,Japan has added a certain number of crimes to protect abstract legal interests by revising the criminal law or establishing criminal penalties in administrative regulations.Similarly,in order to effectively respond to international,organized,and new types of criminal activities,German criminal legislation has demonstrated a functionalist positive criminal legislation trend,adopting methods such as expanding the scope of penalties in the criminal law,lowering incriminating standards.In the context of active criminal legislation,German criminal legislation related to dangerous crimes continues to emerge,and a relatively large number of dangerous crimes have been established for crimes endangering public security,at the same time,there are still a certain number of abstract dangerous crimes in the legislation.Anglo-American law countries take the regulation of actual harm result crimes as a general principle,but there are also regulations on actions that do not cause actual harm to the result.Recently,countries in the common law system have paid attention to the statutes and the preventive function of criminal law.Criminal legislation of the type of dangerous crimes focusing on risk prevention has continued to appear.On the other hand,with the advancing of the theory of risk society,the theory of risk criminal law that reflects the risk society's main value orientation of security has emerged.The theory of risk criminal law argues that traditional criminal legislation and criminal justice activities can no longer adapt to the challenges of a risky society,and the protection limits of criminal law should be pushed forward to meet the current needs of reality.The theory of risk criminal law advocates that the concept of legal interest should be blurred or expanded,advocates a positive general prevention of the purpose of punishment;advocates active criminalization,advocates the functionalization and objectification of criminal responsibility.The theory risk society theory and the theory of risk criminal law have played a positive role in promoting the criminal legislation of dangerous crimes in our country.Based on the prevailing risk criminal law theory,scholars proposed to reform and reform the traditional criminal law concept with risk prevention,and expand the scope of penalties by adding abstract dangerous crimes to effectively prevent and respond to risks.The expansion of criminal legislation for dangerous crimes also has endogenous reasons such as the change of criminal legislation concepts,the driving of risk management thinking,and the promotion of media pressure and public opinion.In the process of the development of criminal law legislation,the concept of criminal law legislation has also undergone major changes.Legislation established as crimes for dangerous crimes and helpers continues to appear,marking that the behavior-based legislative model has gradually replaced the traditional result-based legislative model.The trend of criminalization of criminal law is obvious,and the criminal circle is expanding,which is generally manifested in the legislative process of rigorous criminal law network;the function of penalty prevention is emphasized,and the policy orientation of preventive criminal legislation is obvious.The risk management thinking that pays attention to the pre-guidance of criminal law and social management functions has a positive effect on criminal legislation.Legislators regard criminal law as an important method to manage social control risks.The addition of dangerous crimes responds to the needs of social risk management.Media pressure and public opinion are also important reasons for the expansion of criminal legislation for dangerous crimes.Many new crimes such as drunk driving,illegal behavior on information networks,and throwing objects at high altitude are examples of responses to social concerns.The over-expanded criminal legislation for dangerous crimes has the spirit of statutory crimes and penalties,which may cause symbolic legislative issues and go beyond the secondary nature of the criminal law.The principle of legality prescribed crimes and punishments is the cornerstone of modern criminal law.The expansion of criminal legislation for dangerous crimes will result in the expansion of penal powers,which is not conducive to the realization of the function of protecting human rights.Excessive enforcement of criminal legislation for dangerous crimes may cause the criminal law to fall into the quagmire of sacrificing the rights and freedoms of citizens in order to maintain the empty and abstract social order.The protection of citizens' personal legal interests,on the contrary,excessively infringes on citizens' freedom and rights,which will fundamentally lead to the shrinking of the function of criminal law to protect freedom.The over-expansion of criminal legislation for dangerous crimes will make it difficult for many criminal acts to be held accountable,leading to the phenomenon of “emptying” the provisions of the criminal law and causing the problem of symbolic legislation.The legislation of symbolic legislation not only loses the guiding function of criminal law as a code of conduct,but also damages the authority and seriousness of criminal law.Criminal law has the attributes of secondary law,which serves as the bottom line of laws.The boundary issue between criminal law and pre-law determines whether the criminal law expands or restricts the degree or scope of intervention in social life.Excessive development of the criminal legislative for dangerous crimes blurs the boundaries of prelaws,which not only damages the coordination between departmental laws,but also brings troubles to judicial practice.The fourth chapter is based on the basic principles of criminal law and the theory of criminal legislation.The construction of a country under the rule of law and the progress of a society under the rule of law are inseparable from good law and good governance,and "good law" is undoubtedly the fundamental prerequisite for realizing "good governance".If criminal legislation for dangerous crimes is to become a good law,it must abide by the basic principles of the criminal law and maintain a certain degree of appropriateness.Criminal legislation for dangerous crimes should abide by the principle of statutory crimes and punishments,correctly handle the balance between protection of legal interests and protection of human rights,and resolutely avoid using the pretext of safeguarding social security to improperly or even exceed the limit of intervention and restriction on citizens' freedom.Criminal legislation for dangerous crimes should adhere to the modest and restrained nature of the criminal law and follow the "last resort" and "modest and restrained" nature.It must not be arbitrarily invoking the right of punishment for dangerous crimes without fully considering other protective means and preventive measures.The criminal legislation for dangerous crimes should conform to the spirit of criminal policy.It should not only be in harmony with criminalized policies;it must also meet the requirements of leniency and strict criminal policy.Based on the characteristics of the early intervention of the criminal law of dangerous crimes and the essential attributes of regulating the dangerous state of legal interests' infringement,the criminal legislation of dangerous crimes should set reasonable boundaries,and fully consider the types of legal interests,the severity of behavior,and the actualization of dangers.First of all,criminal legislation for dangerous crimes should be limited to the protection of significant legal interests.It is impossible for the criminal law to include all acts of infringement of legal interests within its scope of regulation.Accordingly,dangerous crimes do not protect all legal interests that are in danger.Significant legal interests are abstract,and the objects they protect are unspecific and extensive,and deserve to be protected by criminal law.The establishment of a dangerous crimes can avoid the transformation of the dangerous state of legal interest infringement to reality,and then the serious damage involving significant legal interests will occur.Secondly,harmful acts that infringe on significant r legal interests should reach a serious level.From the point of view of avoiding actual harm,the scope of actions that cause a dangerous state of infringement of legal interests should be limited.For most types of crimes that infringe on significant legal interests,the traditional criminal law sanctions are sufficient.Among the harmful acts that infringe on significant legal interests and cause a dangerous state,like social and economic development can be set up for dangerous crimes when the post-protection provided by the traditional criminal law is difficult to form an effective deterrent.Whether it is a serious act that infringes on significant legal interests can be comprehensively judged from the objective conditions of the dangerous state caused by the act and the actual damage that may be caused.Thirdly,whether serious harm acts that infringe on significant legal interests can be convicted and included in the criminal law,it is also necessary to consider whether the dangerous state of infringement of significant legal interests has the possibility of transforming into actual harm.The basis for the regulation by criminal law and the initiation of penal power is not the subjective danger of the perpetrator,nor is it the behavior that causes a dangerous state that is absolutely impossible to cause actual harm.It is precisely because the dangerous state of dangerous crimes has the possibility of realizing that it is necessary for the criminal law to stipulate it as a crime in order to reduce the possibility,so that the actual harmful result will not occur.Therefore,whether it is a specific or abstract dangerous crime,the dangerous state of legal interest infringement should have the possibility of transforming to the actual damage result.The criminal legislation for dangerous crimes should also conform to the basic principles of criminal legislation.The criminal legislation for dangerous crimes should conform to general legislative principles,based on legitimate and reasonable legislative purposes,and realistic legislative conditions.It must have complete legislative materials,legislative theories and legislative techniques.It should be coordinated with other departments' legal protection to establish a complete and unified law order,promote the construction process of the rule of law in society.It should also adhere to criminal law economism,focus on combating criminal acts of a bad nature that cause serious violations and threats to legal interests,and do not use criminal law resources to intervene in acts that are ineffective or ineffective in criminal law interventions or have no obvious effect.The criminal legislation for dangerous crimes should conform to the basic laws of legislation.It should be moderately forward-looking,and consider the situation before it.It must also ensure semantic norms and adopt clear legislative terms,so as to ensure the inherent scientific and rationality.The criminal legislation for dangerous crimes must be prudent and rational.On the one hand,the theory of risk criminal law should be treated with caution,avoid blindly promoting the theories of risk society and risk criminal law to excessive pursuit of risk-based criminal legislation;on the other hand,it should respond rationally to media pressure and public opinion.The fifth Chapter discuss the specific path for the improvement of criminal legislation for dangerous crimes: standardizing the constitutional elements of dangerous crimes,standardizing the criminal legislation for dividing specific dangerous crimes and abstract dangerous crimes,strictly restricting criminal legislation for abstract dangerous crimes,and eliminating negligent dangerous crimes.The constitutive requirements of dangerous crimes should be typed and standardized.The constitutional elements of categorized dangerous crimes are an inevitable requirement of criminal legislation.They are not only convenient for the development of criminal justice activities,but also conducive to restricting the expansion of dangerous crimes.Standardized elements for dangerous crimes must grasp the nature of dangerous crimes both has a general description of the common facts of dangerous crimes and an abstract expression of the important characteristics of dangerous crimes.The constitutional elements of a dangerous offender should include: the objective aspect of the behavior should cause the danger of infringement of legal interests,the subject of the actor or unit has the capacity for criminal responsibility,and the subjective aspect of the behavior subject has subjective guilt for the dangerous state of causing the infringement of legal interests.First of all,no matter whether it is a specific dangerous offender or an abstract dangerous offender,the determination of the criminal responsibility of the perpetrator in a dangerous crime cannot avoid the dangerous state of infringement of legal interests caused by the act on which the punishment is based.In the judgment of the possibility of the transformation from the dangerous state to actual harm in dangerous crimes,theoretically,there is a confrontation between the subjective and objective danger theory.Second,when judging which dangerous state can be included in the scope of criminal legislation for dangerous crimes,we should pay attention to the both sides of subjective and objective aspects.We should not only rely on objective dangerous facts,but also consider the subjective aspects of the perpetrator.Third,the subject of establishing a dangerous offender can be a natural person or a unit.Finally,the perpetrator's subjective crime in dangerous crimes is manifested in the subjective knowledge and will of the dangerous state of legal interest infringement caused by the behavior,and the subjective knowledge and will of the damage result of the actual offender corresponding to the dangerous criminal is not a dangerous situation.Therefore,the perpetrator's subjective form of crime in dangerous crimes should be limited to intentional.The legislative classification standard of specific dangerous crime and abstract dangerous crime is the difference of the dangerous state of the legal interest infringement caused by the behavior.Specific dangerous crime is a type of crime that poses real danger to legal interests.Only actions that cause objective and specific infringement of legal interests,and at the same time the dangerous state has a realistic result that transforms into actual harm,can be regulated as specific dangerous crimes.When judging the danger in specific dangers,we should also adhere to the judgment method of combining the general rational person standard and the scientific standard.It can be seen from the current legislative of abstract dangerous crimes that the dangerous state of establishing abstract dangerous crimes does not have the realistic possibility of transforming to actual harm results.Therefore,unlike the danger in specific dangerous crimes,the risk of infringement of legal interests caused by the behavior in abstract dangerous crimes is an abstract danger and a danger of legal fiction.That is,the legislation is more concerned with the implementation of the behavior,rather than the actual danger that needs to be generated like the specific dangerous offender.Based on the particularity of abstract dangerous crimes,criminal legislation on abstract dangerous crimes should be strictly restricted.Abstract dangerous crimes mean that they can be punished when people's actions produce abstract dangers,which undoubtedly makes the time for criminal law intervention even earlier.Compared with actual-harm crimes or specific dangerous crimes,the establishment of abstract dangerous crimes can protect legal interests more comprehensively in situations where the actual damage consequences are unpredictable.Abstract dangerous crimes have concerns about symbolic legislation,simplifying the burden of proof leads to the over-application of crimes and the formalization of convictions.In the current criminal legislation,the legislation on abstract dangerous crimes is constantly increasing,and even the legislation on specific dangerous crimes in the past has been transformed to abstract dangerous crimes.Under the premise of affirming the legitimacy and rationality of the criminal legislation on abstract dangerous crimes,we should strictly control the establishment of abstract dangerous crimes.Criminal legislation for abstract dangerous crimes should adhere to the proper purpose,and the convenience of criminal justice should not be considered,and add abstract dangerous crimes wantonly.The criminal legislation for abstract dangerous crimes should strictly adhere to the principle of supplementary,and it should exhaust the actual offenses and specific dangerous crimes legislative models.When the legal interests are still not well protected,the model of abstract dangerous crimes should be considered for regulation.The criminal legislation for abstract dangerous crimes should be equipped with a lighter statutory sentence to ensure that the punishment for abstract dangerous crimes is reasonable and appropriate.The theory of negligent dangerous crime is unreasonable,and criminal legislation for negligent dangerous crime should be excluded.The difference between the so-called negligent dangerous criminal and general dangerous criminal in theory is that the dangerous state of infringement of legal interests is caused by the fault of the perpetrator.The point of view that advocates the theory of negligent dangerous crimes believes that negligent dangerous crimes are an excellent example of the criminal law's defense against the risky society.Expanding the scope of negligent dangerous crimes in the criminal law is an inevitable trend in the development of legislation.The crime of obstructing the prevention and control of infectious diseases represents the actual provisions of the current criminal law of our country for negligent dangerous crimes.However,based on the strict definition of the perpetrator's evasive attitude towards the harm result,the legal penalty setting is lighter than similar intentional crimes,and the legal penalty balance theory that proves the subjective negligence,and the crime system theory that fills the penalty loopholes,are all not reasonable.Dangerous crimes in...