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On The Recognition Of The Dangerous State Of The Subjective And Objective Unified Framework Of Principles Under Perilous

Posted on:2008-07-07Degree:MasterType:Thesis
Country:ChinaCandidate:X CaoFull Text:PDF
GTID:2206360245482560Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The principle of "the unification of subjectivity and objectivity" is dialectical materialism's basic request in philosophy field, and is criminal concept in criminal law. The Principle of "the Unification of Subjectivity and Objectivity" in condemnation is not only static guidance principle, but also the consensus among multiple subjects in the process of condemnation, we may regard the process of condemnation which guide by the principle of "the unification of subjectivity and objectivity" as a "condemnation mechanism". In light of this mechanism, we may understand the mechanism of "dangerous state". Firstly, in the procedure of spy on fact of case, finding out the "dangerous state" as action fact is the unification of fact judgment and value judgment, so it should be guide by the principle of "the unification of subjectivity and objectivity". Secondly, the confirmation of "dangerous state" is the embodiment of the unification of objective evidence confirmation and appropriate free judge, so, the spirit of condemnation should be the principle of "the unification of subjectivity and objectivity". Third, the "dangerous state" as fact of case is the unification of subjective factor and objective factor, so it embody the principle of "the unification of subjectivity and objectivity"; At the same time, the "dangerous state" is should guide by the principle of "the unification of subjectivity and objectivity" when "dangerous state" is in the system of hypostatic law, because it is the judicial reflection of "dangerous state" as fact of case, it is the unification of subjective factor and objective factor.According to Chinese criminal law and "condemnation mechanism" which guide by the principle of "the unification of subjectivity and objectivity", the accomplished constitutive requirement of the potential damage offense is the existence of the statutory dangerous state. Whatever concrete or abstract potential damage offense, the nature of the "dangerous state" is the unification of subjectivity and objectivity. Both subjective factor and objective factor lead to dangerous state. So, the criterion of the judgment of the dangerous state should be the scientific rules, it is necessary to organically combine the judgment in advance and the judgment afterwards. Because of subjective factor and objective factor are variable after the action of the potential damage offense had been carried out, the action may constitute a different kind of suspended state: discontinuation state or attempted state or of the potential damage offense.
Keywords/Search Tags:the potential damage offense, dangerous state, the principle of "the unification of subjectivity and objectivity", suspended state
PDF Full Text Request
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