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Research On The Discontinuation Of The Potential Damage Offense

Posted on:2006-08-14Degree:MasterType:Thesis
Country:ChinaCandidate:G W ZhangFull Text:PDF
GTID:2166360155953875Subject:Criminal Law
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As the criminal pattern established in the specific provisions ofcriminal law by legislators, the potential damage offense has theoutstanding characteristics in the constitutive requirements different fromother criminal patterns. The criminal object of the potential damage offensecan be divided into three types: public security, the order of the socialistmarket economy and the administration of public order. The characteristicsof the criminal object of the potential damage offense include: limitednessof the types, greatness of the interests involved, indefiniteness of the scopeof being infringed upon, the denseness of the scope and thecomplicatedness of the interests.This article is composed of five parts. In chapter one, we define theconcept of potential damage offense. It is the logic starting point to learnand mast the concept in our research, and it is the most basic request too.There are three kinds of concepts of potential damage offense and theyhave three different footholds, i.e. the grounds for punishment, theestablishment of the crime and the completion of the crime. Throughcomprehensive analysis, the author thinks it is scientific to define theconcept of potential damage offense from the view of the accomplishedcrime, i.e. the potential damage offense refers to the crime for which thestatutory dangerous state, caused by an actor's intentional or negligent act.In chapter two, the author expounds the classification of thediscontinuation of potential damage offense. On the basis of preciseholding the intension of potential damage offense, the author expoundssome classifications of potential damage offense that have reach theconsensus in our educational circles, i.e. the discontinuation of potentialdamage offense during the preparatory period; the discontinuation ofpotential damage offense during the practice period; the discontinuation ofthe completion of potential damage offense. In chapter three, this article studies the most important questionwhether the discontinuation of potential damage offense comes intoexistence a main research after the dangerous state appearing. There is noconsensus re this question in academia. The judicial department is ratherthorny too while dealing with this kind of case. There are three kinds ofopinions re this question in academia, i.e. the discontinuation of potentialdamage offense, the discontinuation of relatively actual damage offenseand the completion of potential damage offense. After analyzing thesethree kinds of opinions, the author thinks that all the three kinds of viewsare rational to some extent, but they still have some formidable drawbacks.The doctrine of the discontinuation of potential damage offense has fineoriginal intention and erects a gold bridge that come back for the actor, butthis kind of view is contrary to the nature of criminal law appraisal fromthe point of view of root. The doctrine of the discontinuation of relativelyactual damage offense gives the actor a chance to repent either, but it willcause a repetitive appraisement of criminal offence, and then cause theputting emptily of the law. The doctrine of the completion of potentialdamage offense is the dominant view in academia and it is rather overalllooked from surface. But it has the fatal defect if we study seriously.Because it isolate the integrality of criminal course, and regards the end ofcriminal course of potential damage offense as the end of the wholecriminal course. Accordingly, it regards the behavior that takes place in theactual crime course to eliminate dangerous state as the behavior that takesplace out of the course of the actual crime. The so-called "end of criminalcourse"is only relative end. In chapter four, the article puts forward some legislative suggestion insetting up the discontinuation of actual damage offense of potentialdamage offense according above-mentioned questions. The discontinuationof actual damage offense refers to a special form of crime'discontinuationthat the actor gets rid of the continuation of dangerous state and stops thecorresponding suffering according to his own will in the situation that thereis a completion of potential damage offense. It is a discontinue behaviorthat prevents the actual harm will or had happened in the whole course ofcrime. This article discusses the necessity, condition, legislative foundationand the social practice of setting up the discontinuation of damage offenseof the potential damage offense. In chapter five, this article discusses the issue of punishment ofpotential damage offense and thinks that the law should prevent crimeessential, and have the limits. The law should try its best to exchangelightest penalty for the greatest effect of prevention and exchangeminimum sacrifice for the greatest interests. This is a request for comingfrom the utility idea, and it is a legal principle of crime and punishmentaccording to the criminal law of our country too. The discontinuationduring the preparatory period should be decriminalized. Thediscontinuation of potential damage offense prevents the dangerous state,...
Keywords/Search Tags:Discontinuation
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