The Research On The Allowed Dangerous Theory

The theory of allowed danger is an unavoidable issue in modern criminal laws. Although having attracted much concern from criminal theories of the continental law system, which is represented by Germany and Japan, it has not been written into the law system of any country. And there is neither much space for nor further research on this theory in published works and textbooks at home and abroad. However, lots of behaviors in real life that seemingly have violated the provisions of the criminal law can find reasons to be forgiven if under sentence. In fact, in judicial practices, many cases are under the shade of "the allowed danger". This paper aims to do some research on the theory of the allowed danger and put forward the author’s views.This paper is divided into four parts:The first part analyzes the theoretical and realistic backgrounds of the theory and explores the concept of "the allowed danger". The new negligence theory is brought up with the progress of the society, turning the core of the concept "negligence" to obligations to avoid the results. The objective behavior theory takes the characteristics of causality and subjectivity of the behavior, arguing that to judge whether an act is against the law should not only judge whether the result is valueless, but also need to judge whether the effect is valueless. The risk distribution theory distributes the attention obligation to the participants in a reasonable way, which to a large extent mitigates the attention obligation on the part of parishioners in high-risk industries. The theory of allowed danger is come up with the theory of risky society, and is invigorated in the theory of valueless effect. Therefore, the theory of allowed danger in not only used to restrict the confirmation of liability for fault, but to encourage people to explore uncharted realms.The second part makes an analysis of the theoretical basis of the theory and tries to find the reasons for an act to be allowed. Theories supporting the theory of allowed danger are mainly the monism and the pluralism. Monism includes the theory of comparison of legal interests, the theory of aims, the theory of social correspondence and the theory of punishable liability; while pluralism holds that there is no uniform theory to explain the theory of allowed danger. Appropriate theory should be decided according to the form and condition of the act to explain the foundations of the allowed act. The comparison of monism and pluralism and the analysis of monism viewpoints point out that the theory of allowed danger is based on the theory of social correspondence. The theory of allowed danger is the reflection of the social correspondence under the circumstance of risky society.In the third part, the author makes a special effort to explore the position of the theory of allowed danger in the system of criminal theory. Crime law scholars positioned the theory basing on their own understandings, which has caused a large dispute. The theory, with different supporters, can function as eliminating the conformity of constitutive elements, eliminating the illegality, or eliminating liability. Some scholars even assert that the theory of allowed danger has both the functions of eliminating illegality and eliminating liability. By combing the development of the criminal theory system, the author points out that viewpoint of each scholar is connected to the criminal theory system which they use. The theory of allowed danger has a dual function; one is to provide foundations for the essential explanations of detailed constitutive elements of crime, while the other is to provide guidance for the explanation of legitimate causes, which proves that the theory of allowed danger is the uniform theory for explaining unlawful constitutive elements. In the crime constitutive element system of China, the theory of allowed danger is part of the contents of the objective elements of crime.The fourth part is about the practical use of the theory of allowed danger. In the field of criminal theory systems, the theory of allowed danger brings new contents and energy to the valueless effect theory. The theory of allowed danger leads the core of the valueless effect theory to that the essences of the evaluation of illegality is not the results of legal interest damages, but the acts that cause, increase, or bring about risks. The risks are not allowed by the law, thus being considered as illegal. The theory of allowed danger as well as the risk distribution theory is the theoretical foundation of the principle of reliance. The theory of allowed danger is also a key aspect of the objective imputation theory. Besides this, the theory of allowed danger defines the scope of application of criminal negligence in the risky society, which reflects the value of the Criminal Code of Modesty, agreeing to the basic spirit of the criminal policy "combining punishment with leniency" of China. In judicial practices, for example, in medical actions, actions of using biological technologies and harmful actions in competitive sports, the theory of allowed danger is also used to prove their legitimacy.