Research On Related Issues On Abstract Potential Damage Offense In Risk Society

With the development of the theory of Risk Society, the concept of risk criminallaw has been proposed. When facing the increasing endogenous risk in the progress ofindustrialization as well as the continuous development of science and technology, ithas become an important issue that how the criminal law should take it response.Risks in modern society differ from the traditional social risks. Forecast in advance,punishment and compensation afterward has become meaningless. Abstract potentialdamage risk becomes the subject of this essay for that it is a kind of regulation of thehigh-risk behavior in advance. The paper briefly describes the current legislation ofcriminal law in German, Japan and China in the risk society, then discusses about thelegislative principle, the connotation of abstract danger, as well as the reasonablemeans to limit abstract potential damage offense.Besides the introduction and conclusion, the rest text consists of four parts:Part one: The legislative status of the abstract potential damage offense in risksociety. There is profound practical and theoretical basis for the development of thistheory. The proposal of the concept of risk society and risk criminal law makes usrealize that risk has been established as the salient feature of modern society. Alongwith the development of industrial society and the scientific and technologicalprogress, the risk of modern society is gradually showing their differentcharacteristics from the traditional society, which has caused a strong demand for social order and a sense of security. And that has also led to the crisis of the traditionaltheory of criminal law. As a measure of protection of legal interests in advance,abstract potential damage offense theory has appeared in the theory of criminal law andlegislative practice of civil law countries such as Germany and Japan. Study on the theoryof abstract potential damage started relatively late in China, but there are also somerelated provisions in China’s criminal law. The crime of dangerous driving and themodification of selling counterfeit medicines in the Criminal Law Amendment (8)have also raised new concern about the theory of abstract potential damage.Part two: the response of the criminal law and legislative principle of abstractpotential damage in risk society. The abstract potential damage theory is a positiveresponse to the risk for modern society, as well as the strong public demand for socialsecurity in risk society. There is realistic need for the advanced protection of legalinterests, which also contributed to the development of the theory of protection oflegal interests. In order to protect the legal interest in advance and comprehensively,the connotation of the legal interest has developed from concrete to abstract, fromphysical to mental, and from personal interest to ultra-personal interest, thusconfirmed the legitimate basis of this theory. On the other hand, this theory has alsoled to tensions between the protection function and freedom security function ofcriminal law. When people’s sense of security is in jeopardy, demand for public orderand public security is quite strong, and the punishment and remedial measures fails, itis necessary to protect legal interest in advance. Of course, the criminal law shouldkeep being modest, fully exerting the function of the protection of human rights, andthat means abstract potential damage offense could be set only when it’s necessaryand effective.Part three: The definition of abstract danger in the abstract potential damageoffense. The connotation of abstract danger is a core concept of the theory of abstractpotential damage. Different understanding of abstract danger makes a differentunderstanding of the abstract potential damage offense, as well as the different crimecategories, especially the different relation between behavioral offense andconsequential offense. When comes to the nature of abstract danger, there is a dispute of behavioral properties and consequential properties. The danger of one’s behaviorand the result is closely related, the danger in the result is inevitably comes from therisk behavior. So the abstract danger here is a judge of the risk behavior. And unlikethe concrete danger, this is highly abstracted, which is regulated by the legislator andneed no judgment in specific cases. The diverse understanding of behavioral offensemakes it even more complicated to distinguish between abstract potential damageoffense and behavioral offense. It seems impossible to distinguish the two conceptsfrom the level and performance of risk. Only abstract danger is the key to this puzzle.And in some behavioral offenses, damage has already happened.Part four: the reasonable limit of the abstract potential damage offense and itsbasis. This theory has been long questioned for the tendency of legal interestprotection in advance and the expanded understanding of legal interest. It is necessaryto set up reasonable limits to it. As to the provisory provision, take the structure of thecriminal law and the relation between general provision and specific provision, aswell as the relation between the concept of crime and constructive requirements intoconsideration, it could be a general guidance in conviction and sentencing, but cannot be used directly as the reason of not guilty. As that the abstract danger is alegislative presumption, and the punishment is based on the risk prohibited by thecriminal law, so it should be allowed to disprove guilty.