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On Suspension After Dangerous Condition Of Potential Damage Offence

Posted on:2012-07-21Degree:MasterType:Thesis
Country:ChinaCandidate:L J DengFull Text:PDF
Abstract/Summary:PDF Full Text Request
According to the Chinese general criminal law theory, the potential damage refers to the crime whose accomplishment is marked by the legal occurrence of the dangerous state that may cause harmful consequences by the behavior of the perpetrator .But whether it establishes suspension and what kind of suspension it establishes when the actor takes the initiative to eliminate dangerous state after the appearance of the legal dangerous state of the Potential Damage, in theory, is quite controversial. In view of the above questions, there are theories in our country's academia about criminal law such as, the accomplished offense of potential damage, suspension of potential damage, suspension after the accomplishment of potential damage, suspension of real harm offense and suspension of aggregated consequential offense and so on. Theory of uneven also leads to the phenomenon of different treatments on similar situation in practice, which is contrary to the basic principles of equal application of criminal law. This article is writing for the purpose of defining clearly the theory erroneous zone of the educational world, and powerfully proving the author's viewpoint, with the hope of doing some help to the practice and maintains both the justice principals of equal application of criminal law and punishment fits the crime . The full text based on analysis of the advantages and disadvantages of the above several theories, in favor of the conclusion of suspension theory. Suspension of a crime refers to a case where, in the course of committing a crime, the offender voluntarily discontinues the crime or voluntarily and effectively prevents the consequences of the crime from occurring, and the case that after the dangerous state appears the offender automatically eliminate the danger to avoid real harm results occur, in addition to in full compliance with the legal suspension of the General laws on crime in the law theory ,is consistent with the legislative purport of crime on suspension. Recognizing the suspension after the risk of the potential damage, is conducive to safeguarding the principle of conviction and penalty according to law, in line with our policy of combining punishment with leniency, and will encourage the suspension of crime of the perpetrator so to protect the legal interests, and also is conducive to the effectiveness of play penalty as well as in line with the purpose of punishment.This article adopts the case-analysis form to analyze the situations of suspension after the appearance of danger, and anatomizes and carefully examines each viewpoint of the educational world as well as proposes my own viewpoint directly. The full text divides into six parts:The first part is of cause of action this article.The second part is about the case presentation and the focus on the demonstrations, which starts from a controversial case with a brief introduction of the existing academic theory, leads to the focus of the problem that how to identify the criminal pattern when the actor take the initiative to eliminate the danger state to avoid the real serious harm results occur after the appearance of the legal danger state in the case above.The third part is concerning with the author's analysis and criticism on the above points of views from the perspective of the criminal law theory , and then points out the problem.The fourth part is about the critical analysis on the several Views of the foregoing based on which the author positively demonstrates his own viewpoints. And based on the elaboration of the concept of potential damage, the legislative basis and the elements for establishing of suspension, starting with the relationship between the general theory of crime constitution and the pattern of intentional crime, the author attempts to present a new method of problem solving. The author also demonstrates that the crime constitution is only a condition to constitute a crime, but not takes the accomplished pattern of crime as a model. Furthermore, the author reveals the legislative purport of the ruling of the potential damage by criminal law from the perspective of the nature of crime, and it further supports the desirability of the author's view.The fifth part consolidates the viewpoints of the author and meanwhile at the last time specifies the scope of the establishment of suspension after the danger of the potential damage.The sixth part is the conclusion of this article.
Keywords/Search Tags:the potential damage, suspension, crime constitution, legal interests'protection
PDF Full Text Request
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