Research Of The Allowed Danger In Criminal Law

When there is a dilemma between science technology development, social progress, and the protection of legal interests, how to resolve this paradox becomes a problem for all criminal law scholars have had to face. This requires us to consider the arts of balancing, in order to make a maximum and the most rational choice. The value of the allowed danger theory lies in the balancing point which is found between the value of social development and security.It sets out a mechanism of exempting from crime in connection with the behavior that having a legal interest in some danger but for the infringement of essential social development,and maximizes the value of equity conflicts between development and security.Therefor, where is the theory’s foundation of exempting from crime? First of all,it needs to clarify a fundamental premise, that is what is the crime, and what is the nature of the crime. The doctrine of infraction on legal interests proposes that crime is the violation or threat of legal interests,and highlights the perspective of results’ demonstration.However, it suffers the suspects that it accounts the criminal responsibility only on results. The doctrine of violation on norms insists that crime is a social norm violation of the legal behind. Although it reflects the tendency of accounting criminal responsibility on behavior, the ambiguity of the connotation and denotation of norms is likely to expand the scope of the crime.As a result, the view of infraction violation of legal interests and regulations on the dual nature of the crime is favored by many scholars.The allowed danger theory building on the position of the results’ value and the behavioral value,is the refutation of the view of accounting responsibility on result one-side. It makes the foundation on substantive illegality, and effectively corrects the tendency of expanding the scope of crimes.This article text is divided into five parts. The introduction gives an overview of the topics’ proposing, significance and research purposes. The main conclusion gives a highly summarization of the full text, and makes a future looking of the theory.The first part:the origins of the allowed danger theory. This part mainly elaborates the theory’s connotation and development changes. Firstly, it gives an comprehensive explanation of the allowed danger theory’s concept, feature and value, and eliminate the theory’s connotation, clarifying the theoretical context.Secondly, it gives an precise explanation of the theory’s budding, establishment and evolution,clarifying the theoretical development changes, and eliminate the theory’s historical traces.The second part:the theoretical basis of the allowed danger theory. This part mainly elaborates the theoretical origins and justify accordance of the allowed danger.It gives a definite explanation of the relationship between the allowed danger theory and the old-new negligence theory, the dangerous assignment, the trust principle, and the objective imputation theory, probing the allowed danger theory’s theoretical origins. And it makes a detailed analysis of the legal interests measuring view, the purpose view and the social legitimacy view, clarifying this article’s ad vocation of social legitimacy view and the justified foundation of the allowed danger.The third part:the system position of the allowed danger theory. This part mainly elaborates the allowed danger’s system position in the background of German and Japanese law theory of crime and the crime constitution of our country. In the background of the three-sector crime constitution system, the theory’s system position is mainly relating to the compliance elements negate view, the illegality negate view, the criminal responsibility negate view and the dichotomy view.In the criminal system of our country, the judgment of substantive illegality has been integrated into the various constituent elements, so it does not exist a controversy of the allowed danger which occurs in the context of civil law system.The fourth part:the criterion of the allowed danger theory. This part mainly elaborates the reflections of domestic and foreign scholars on the insights, and try to give a definite building of the criterion of the allowed danger. Considering the perspective of the results and the behavioral value dualism, the criterion of the allowed danger theory should be builded on the measuring of legal interests and the circumstance of behavior to make the theory evidence-based in the judicial practice.The fifth part:the practical application of the allowed danger theory. This part mainly elaborates from two perspectives. Firstly, it discourses the tendency of expanding applicable scope of the allowed danger theory in practice, considering the current social context. Secondly, it sets the the application of the allowed danger theory in practice in the medical field as an example, analyzing the justified elements in medical field of the theory, the determination of the allowed danger and the medical negligence, and the limiting cases of the allowed danger theory in this field. It powerfully demonstrates the usefulness of the theory by the typical microcosm of the allowed danger’s application in medical field.