The Research On Personal Danger

Personal danger is the core of subjectivist theory of criminal law, which supposed person is empiricist and actor is the core of theory by criminal modern school. It is the corner stone of criminal modern law. The criminal theory,criminal legislation and judicial practice of continental law system countries embody the personal danger theory undoubtedly. The criminal theory field in our country has ever withdrawn the personal danger for long times, even regarded personal danger as politics tab and denied and excluded it with no reason. With the development of society, the criminal theory field of our country has already faced the objectivity of personal danger in order to satisfy the need of the reality and affirmed the positive meaning of studying personal danger fully. The paper, rooting criminal science and absorbing the positive achievements of such neighboring sciences as criminology,criminal physiology and psychology, studies the personal danger thoroughly by adopting comparison method,historical analytic method and positive analytic method.The paper is composed of five parts. Chapter 1 is preliminary provision. In this part, the author emphasizes the significance of studying personal danger and points out the main context and the research method of studying personal danger. Chapter 2 is the historical origins of the personal danger theory. Any theory is the react of the social reality, not resulted without real soil, so there are special historical origins for the formation of the personal danger theory. It is the premise for us to study the historical origins and grasp the historical trace of the personal danger theory development. So we can form the systematic cognition and take advantage of the personal danger theory which can be called"the stone of other hills". Chapter 3 is the concept and symptom of personal danger. Concept is the native cognition which people know nature. After analyzing the concept of personal danger in the criminal theory of China and foreign countries, the author put forward the opinion: personal danger is the possibility of first offense or the possibility of repeat crime which is determined by the special personality of the actor and social environment. It is the integration of the crime tendency and norm evaluation of the actor. On the basis of the concept, the author also poses that we should comprehensively judge the symptom of the personal danger in both static and dynamic perspective, thus, we can check and verify whether actor is personal danger and the degree of personal danger. While the static side and dynamic side are not concurrent elements wholly, they are repeated to some degree. Chapter 4 is the nature of personal danger. The author believes that personal danger is different from subjective evil character and social harmfulness. It is an independent category. Both personal danger and social harmfulness are the native character of crime, which is the nature of personal danger. The former points to the unaccomplished crime, while the latter points to the ascertained offense. Chapter 5 is the functional position of personal danger in the crime law theory. After analyzing the functional position of personal danger in the crime law theory both in the continental law system and in Chinese crime law theory, the author points out that personal danger should appears in the theory of crime, so that we can settle down the one-sided doings which we only take about personal danger in the theory of punishment. Nowadays, human right protection is more and more emphasized. Basing the judicial practice, personal danger should only be the evidence of exclusion of crime in the reality of China today. We can determine that an author does not commit a crime because he does not have personal danger or his personal danger is small. While we can not determine the commission of a crime of an actor because the actor has personal danger or his personal danger is large.