The Study Of Discontinuation Of Potential Damage Offense

As a special crime type defined by our specific provisions of criminal law, potential damage offense has been praised by attention since it has been introduced into China's criminal law research field. Although scholars have reached consensuses in many aspects of this theory, for the question of discontinuation of potential damage offense, especially when actor takes active measures to stop the dangerous result from happening, after actor's dangerous behavior has finished, and the legal dangerous state has occurred, how to cognize it is still a vexed question.This paper analyzed typical cases; displayed different views of whether discontinuation of actual damage offense can be convicted after the legal dangerous state appeared and found that it is more reasonable to recognize this as discontinuation of potential damage offense.This paper is divided into four sections:The first section gives the general concept of discontinuation of actual damage offense. The content of the discontinuation of actual damage offense is in article 24 in China's criminal law. In current criminal law sector it is generally believed that discontinuation of actual damage offense has three important components, including timeliness, automaticity and effectiveness. Timeliness is the precondition, automaticity is the substantive condition, and effectiveness is the restriction condition. All three components should be included to convict the discontinuation of actual damage offense.The second section expounds the question of discontinuation of potential damage offense.First the author defined the concept of potential damage offense from the view of crime convicted conditions, the reason of criminal punishment and completion of a crime. Then the author analyzed discontinuation of potential damage offense according to crime in preparation phase, crime execute phase and crime implement end phase and timeliness. It is found that the dispute centers on how to cognize the behavior when actor takes active measures to stop the dangerous result, after actor's dangerous behavior has finished, and the legal dangerous state has occured.The third section mainly demonstrates that actor takes active measures to stop the dangerous result, after the legal dangerous state has occurred should be convicted discontinuation of actual damage offense. This is the key point of this paper. To begin with, the author analyzed typical cases, demonstrated four types of views about whether discontinuation of actual damage offense should be convicted or not, which include potential damage offense accomplishment, discontinuation of actual damage offense, discontinuation of offense after accomplishment, and discontinuation of potential damage offense. Then the author analyzed these four views and pointed out their respective deficiency. In the end it is believed that discontinuation of actual damage offense is more reasonable. It is demonstrated from five aspects.The forth section demonstrates the punishment of the criminal who discontinuities the actual damage offense. The author analyzed the punishments of discontinuation of offense, discontinuation of potential damage offense, and actual damage offense. It is believed that the lenient punishment of discontinuation of actual damage offense should be based on measurement of penalty when the actual damage hasn't occurred. This fits the requirement of the principal of suiting punishment to crime.In conclusion the author believes that in present days, the criminal judicial philosophy emphasizes on guarantee the right of offender, the punishment of actor who takes active measures to stop the legal dangerous result from happening after the dangerous behavior has finished and the legal risk has occurred should be recognized as discontinuation of actual damage offense. In the mean time it reveals that the modest of criminal law plays a directive role in the criminal justice and can provide reference meanings in judicial practice in the future.