Advanced Standardization And Restriction On The Hazardous Areas Of Our Criminal Law

With the development of our society, science and technology has been appliedwidely in many fields and bring great welfare for us. But at the same time, we shouldalso be soberly aware of the danger we are facing, which will have increasingimpact on the whole mankind and its descendant. Under this background, as a riskmanagement tool which can protect the legal interest in advance and comprehensively,abstract potential damage offense has received unprecedented attention and beenapplied extensively in many countries. Chinese Criminal Law started relatively late,although there are legislation precedents of abstract potential damage offense, they areobviously insufficient and hysteretic compared with other countries, especially inhazardous areas. In this paper, the concept of abstract potential damage offense will bediscriminated first, then discuss in accordance with〝the rationality of abstractpotential damage offense, the necessity and rationality in hazardous areas, thelegislative perfection in hazardous areas〞.In addition to the introduction and conclusion, the rest text is divided into threeparts:Part one: The concept and rationality of abstract potential damage offense. Justification of punishment lies in the abstract risk of infringement of legal interests,which is not the risk of behaviors but of results. The act is presumed to have thedanger of infringe of legal interest as long as the perpetrator committed it, except thatit can be disproved, so you can accurately distinguish abstract potential damageoffense from concrete potential damage offense and behavioral offense. At the sametime, abstract potential damage offense conform to the restrictive principle and theprinciple of personal responsibility, so their existence are reasonable.Part two: The necessity and rationality of abstract potential damage offense inhazardous areas. Firstly, the danger in risk areas is usually latent and extensive, it willbe found only when the risk has appeared, but accompanying with this is theappearance of actual damage. Not only social policy, non-criminal law but alsoconcrete potential damage offense can protect our society ineffectively, therefore it isparticularly necessary and urgent for the establishment of abstract potential damageoffense. Secondly, the establishment of abstract potential damage offense canguarantee the conditions, opportunities and systems of implementation of individualbenefits, provide a comprehensive protection in advance, fully exert active ordinaryprevention effect and so on, thus make social security and public order be effectivelymaintained. On the other hand, danger-allocating theory require a rational distributionto the danger, to minimize or eliminate crime, it exactly conform to this requirement.Thirdly, the causality between criminal behavior and consequence in hazardous areasis usually not clear, this make it difficult for the prosecutor side to adduce evidence,the setting up of abstract potential damage offense which can save judicial cost andsocial cost make this problem reasonably resolved. Thus, it is recommended that thelegislation of abstract potential damage offense should be extended in hazardousareas.Part three: The legislative perfection of abstract potential damage offense in riskfields. This part refers to the criminal legislation of Germany, Japan, Taiwan and otherdistricts, then it is suggested that the legislation of abstract potential damage offenseshould be extended in fields of public safety, environmental protection and publichealth at present, to ensure the security and order. However, abstract potential damage offense intervenes one’s behavior in the early stage, it will be reasonable only whenthe legislation conform to the following principles: necessity, emphasizing theapplication of Control Punishment, Pecuniary Penalty, other non-imprisonmentpenalty and Qualification Penalty, otherwise, it will result in excessive interference ofcivil rights.