Study On The Demarcation Line Between Abstract Potential Damage Offense And Concrete Potential Damage Offense

The doctrinal study of potential damage offense has been more than a hundred years, it has always taken over an important position in criminal law theory. It has been further studied in Germany, Japan, as the representative of the civil law. Common views recognized the classification of abstract potential damage offense and concrete damage offense, but the distinction between the two standards regarding academic insights scene, did not reach a common understanding. And our focus on potential damage offense began from the 1990 s, but also mainly on the theory of the civil law, as the promulgation of China’s "Criminal Law Amendment(eight)," potential damage offense, especially abstract potential damage offense, has been greatly concerned, also due to premature intervention controversial penalty punishment, in order to reasonably control their access to the criminal law "degree", it is necessary first of all abstract potential damage offense and concrete potential damage offense make accurate and specific sub-sector.In this paper, the current four theories of abstract potential damage offense and concrete potential damage offense are summarized, the theory of constitutive element, the theory of risk attribute, the theory of risk level, the theory of judgment, the theory of judgment can get a clear positioning for the twilight zone of abstract Perilous, it provides reference for the application of potential damage offense in our juridical practice.Besides the introduction, the paper is divided into three parts, totaling 39,000 words.The first part, the issues raised. The recognition of potential damage offense and abstract potential damage offense in China for a brief description, and further illustration on the distinction between abstract potential damage offense and concrete potential damage offense on both doctrinal and practical significance.The second part, the theoretical controversy. It summarizes the four current theories of the distinction between abstract potential damage offense and concrete potential damage offense, which are the theory of constitutive element, the theory of risk attribute, the theory of risk level, the theory of judgment. In the theory of constitutive element, it responds to the negation of "abstract potential damage offense" in theoretical circle, it focus on the controversy of abstract potential damage offense and behavioral offense, which has its own unique advantages as the representative theories in Germany, Japan. It is absolutely clear in its application, but it is only a formal distinction, and currently China’s criminal law can not be completely dependent on the theory of constitutive element. The theory of risk attribute is based on the behavioral attribute and resulting attribute of risk. However, the distinction between the behavioral attribute and resulting attribute is difficult to achieve, which has no practical significance. From the broad sense, abstract potential damage offense and concrete potential damage offense both belong to resulting risk. The theory of risk level contains three different views, but eventually settled on the comparison of risk level, still caught up in the vicious circle can not be compared. The theory of judgment considers abstract potential damage offense and concrete potential damage offense belong to risk of "legislative presumption" and "judicial recognition", it is not only a good solution to the problem that other doctrine can not recognize "abstract potential damage", but also in line with judicial practice, which provides basis for the practice.The third part, to implementation of the theory of judgment. First, it defines abstract potential damage offense and concrete potential damage offense on the basis of the theory of judgment. Then it discusses in detail from four representative controversial crimes, which are the crime of dangerous driving, "pickpocketing type" theft, arson, the crime of abandonment, it considers the drunken driving and chase driving belong to abstract potential damage offense and concrete potential damage offense. "Pickpocketing type" theft belongs to abstract potential damage offense, but according to the legislative spirit, the obviously minor of circumstances allows "but the book" a crime by the Criminal Law Article 13, the crime of arson and abandonment belong to concrete potential damage offense.