A Study On Determining The Nature Of Pengci Conduct With Driving A Car As A Crime Of Endangering Public Security With Dangerous Means

In recent years, Pengci case with driving a car happens from time to time. Since there is still no agreement on how to identify the crime in theoretical and practical circle, endangering public security with dangerous means seems to be applied as all inclusive crime which leads to the happen of sentences being against the principle of legality, the principle adaptation in criminal legislation and the modesty principle in criminal law all of the time. The purpose of this paper is to determine the nature and impose penalty of Pengci case with driving a car through understanding the constitution of the crime of endangering the public security with dangerous means, comprehending the meaning of public security, other dangerous means, and subject intent and interpret the Article 114, 115 of the criminal law properly in avoidance of arbitrary enlargement appointment. This paper also brings up corresponding legislative and judicial suggestions in determining the nature of Pengci conduct in order to have a concrete analysis and solution to improve status quo of the appointment of endangering public security with dangerous means. The writer tries to resolve corresponding issues by the following four chapters.The first part describes conduct of Pengci, or to be specific, Pengci conduct with driving a car, and illustrates the controversy about determining the nature of Pengci as endangering the public security in PRC's current judicial practice through three cases. Besides, this chapter brings forward the problems arising from the said case that should be settled---what's the nature of the crime of endangering the public security with dangerous means, how to define the constitution of the crime, what's the influences of different circumstances on determining the nature of the crime and how to implement the basic principal and criminal policy of the criminal law in the process of conviction and sentence in such cases.The second part discusses the nature of endangering the public security provided by Article 114. It first elaborates potential damage offence. Article 114 of the Criminal Law is to intimidate and threaten the act with a social risk by sanction when potential damage offence stems from dangerous pressure posed on the society and the people by risk society, so the legislation states clearly endangering public security with dangerous means stipulated in Article 114 is typical potential damage offence. Secondly, in accordance with the distinction between specific and abstract potential damage offence about dangerous state and the danger of criminal offense, the conclusion that endangering public security with dangerous means belongs to specific potential damage offence can be reached via the example of arson. Thirdly, through the statement of dangerous status which is the element of specific potential damage offence, the writer points out the prerequisite which constitute specific potential damage crime, and then the crime of endangering public security with dangerous means. Last but not least, this chapter starts from object violated by potential damage offence to analyze the basic attributes of the object of crime of endangering public security.The third part analyzes difficult issues in constitution of the crime of endangering public security which falls into three sections. The first section introduces and analyzes different theories and details as well as makes an analysis of the key points in determining public security like independent, majority so as to get the most appropriate formulation of independent and majority. The second section introduces and defines various theories and details about other dangerous means. The writer puts forward the interpretation of other dangerous means to be taken, which should be interpreting prudently in real terms, strictly limiting the interpretation and paying attention to systematic interpretation. The final section explains the subjective element, intentional purposes of this case, with emphasis on the distinction between indirect intent and unpremeditated crime of over-confidence, which whether the actor could possibly avoid producing socially dangerous consequences, based on the actor having fully recognition of the elements.In the final part, through the analysis of the above-mentioned three parts, the writer gives his suggestion on how to amend the criminal law regarding to determining the nature of Pengci conduct with driving a car as endangering public security with dangerous means. These suggestions include determining the nature of Pengci in different situations respectively, bringing forward legislation in view of the lack of corresponding provisions in Article 114 and 115 and implementing the principle of legality and criminal policy of tempering justice with mercy in conviction and sentencing of Pengci case with driving a car in judicial practice.