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Perilous Research

Posted on:2007-05-09Degree:MasterType:Thesis
Country:ChinaCandidate:H S HongFull Text:PDF
GTID:2206360185972314Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
This article is divided into three parts.Part one is on the discussion of the concept of the potential damage. In the statements on the concept of the potential damage in the theory of criminal law of continental law system, there exist three different footholds, i.e. the grounds for punishment, the establishment of the crime and the completion of the crime. The difference of the footholds originates from the discrepancy of the cognizance of the scope of the potential damage offense. The author maintains that in the theory of Chinese criminal law, the statutory dangerous state as the element of the objective constitutive requirements should be the standard for the concept of the potential damage offense, i.e. the potential damage offense refers to the crime for which the statutory dangerous state, caused by an intentional or negligent act, is the element of the constitutive requirements.Part two is on the discussion about the disagreement of the potential damage. These are disagreements over the category of abstract dangerous state and concrete one. The author maintains that under the theoretical background of recognizing the division of the offense in form and that in substance in the continental law system, the concept of the abstract potential damage offense defined from the meaning of the grounds for punishment has certain value of existence, i.e. it can explain the problem of the grounds for substantive illegality of an act when the actual damage of danger are not caused. Under the theoretical background of recognizing the division of actual damage offense, potential damage offense and behavioral offense, the concept of the abstract potential damage offense defined from the meaning of the grounds for punishment equals behavioral offense, but is juxtaposed with the potential damage offense defined from the meaning of the commonly-accepted doctrines. The concept of the abstract potential damage offense defined from the meaning of the element of constitutive requirements is also unacceptable. As far as the negligent dangerous act is concerned, there still exist controversies over its criminalization. The author maintains mat the attitude of moderate criminalization should be taken.Part three is on the discussion of the criminal state of the potential damage.
Keywords/Search Tags:potential damage offense, abstract potential damage offense, negligent potential offense, the discontinuation of the potential damage offense
PDF Full Text Request
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