Study On The Potential Damage Offense Of Attempted Form

Potential damage offense occupies an important place in the criminal law, the research of the potential damage offense is not such deep and rich at home and abroad. This paper discusses the potential damage offense on attempted basis of existing research. This article is divided into four parts, the summarize of the Potential damage offense, the prove of the potential damage offense, the scope of the potential damage offense and the judgment method of the potential damage offense.The first part is the summary of the potential damage offense. This part firstly gets the concept of the potential damage offense by analyzing the advantages and disadvantages of the concept from home and abroad. The next is the summary of it, especially the abstract potential damage and material potential damage according to make certain explanation and distinguish standard.The second part is the existed proof of the attempted potential damage offense. The paper makes a explanation and comparison of the negation, the compromise, and the affirm saying. Besides the paper discusses the base of it. The author thinks there are attempted and the accomplished potential damage offense.The third part is the scope of the attempted potential damage offense. The author thinks that both the abstract potential damage and the material potential damage have the attempted state. For the material potential damage, when the offender embarked on the behavior of the component elements of a crime, but there is no danger of violations of the law, and through the analysis of a breach of the transportation to prove it. For the abstract potential damage although in the general case, implementation of the abstract dangerous made the behavior of the constitutive requirements emerge in the abstract dangerous results; But it can’t rule out under special circumstances, although embarked on the behavior of the abstract potential damage, but it didn’t happen abstract potential danger as a result, the attempt will set up the abstract dangerous crimes, this part has drunk driving sin, for example.The fourth part is the attempted potential damage offense judgment method. First of all, the author analyzes the recognize of potential damage offense, attempted to distinguish the attempted damage offense and preparation. Secondly, this paper discusses the distinguish of the attempted potential damage offense and damage offense, the theory of the damage result, the theory of self-control, and the theory of risk state. By the criticize of the former two theories and the confirm of the third theory, the author makes the stander of distinguish the attempted and the damage defense, the risk state saying. Thirdly, the key to the damage offense and the attempted damage offense is the judgment of the dangerous state. The core is the judgment material, the time, the stander and the specific element. By discussing this part, the judgment stander of the attempted damage offense can make a conclude. For the material judgment, it is based on the facts. For the judgment time, the before and after time are connected. For the stander judgment, it is based on the personal stander, with the comparison and objective judgment. For the specific element, it is needed to consider the attribute of the damage behavior, the degree, the method, the object and the realistic possibility of the behavior and the subjective aspect.Through the understanding of issues concerning the potential damage offense in our country, analysis the foreign theory of potential damage offense, find the theoretical foundation and concrete judgment standard of potential damage offense, in order to promote the integrity of the potential damage offense theory system.