The Study On The Legitimacy Of Abstract Potential Damage Offense And Its Boundary

Punishment legitimate foundationis one of the fundamental problems of penology, that isto say，there should be a good reason for the criminal penalties for any illegal action.However,abstract potential damage offense, as one of criminaltypes, which has no need for the realharm results with the specific risk for the constitutive requirements. It is essential to study thelegitimacy of abstract potential damage offense, whose boundary must be strictly limited.There are three parts in the thesis paper, whose main body is more than30000words.The first part: Overview abstract potential damage offense. Firstly, this part defines thescope of abstract potential damage offense and the potential damage in abstract potentialdamage offense. Meanwhile, differentiateabstract potential damage offense,idiographicpotential damage offense and behavioral offence. Point out the object explored in this paper,which is the intensionandextention of abstract potential damage offense. Secondly, by analysisof the legislativeintent of the New and revisedabstract potential damage offense’s legislativepattern in Criminal Law Amendment (The eighth edition), this paper draws a conclusion asfollows: based on the needs ofthe people’s livelihood, Chinese criminal legislation presentsthe trendency of expanding the scope of abstract potential damage offense, whichisthought-provoking.The second part: study the legitimacy of abstract potential damage offense. The perspective ofthis part is mainly from macro to micro, as well as from theory to practice. First of all,investigate the legitimacy of abstract potential damage offense from the aspect of the value ofcriminal law, the setting of abstract potential damage offense shows that criminal law focuseson the realization of the order value. However, based on the the current situation, criminal lawshould pay more attention to the protection of the free value.Secondly, investigate the settingof the legitimacy of abstract potential damage offensefrom the aspect of spirit and basicprinciples of criminal law, this paper draws a conclusion that the setting of abstract potentialdamage offense conflicts with the tolerance spirit of criminal law and principle of violatinglegal interests. Furthermore,investigate the setting of the legitimacy of abstract potential damage offense from the background of risk society, This paper draws a conclusion that therisk prevention and control ability ofthe setting of abstract potential damage offense is indoubt. However, according to the dual regulation of the illegal acts in China, we can employtheadministrative penalty instead of the setting of abstract potential damage offense.Last butnot the least, asthere is no clear division between criminology and science of criminal law in China, criminal lawhas no alternative but to play somerole in the function ofcrime prevention.Considered fromlegislativetechnology, abstract potential damage offense is of great necessity.Based on the analysis of this part, the author finds thatthe setting of the legitimacy of abstractpotential damage offenseis limited.The third part: define the boundary of abstract potential damage offense. The analysis ofthis part is mainly from the legislative and judicial level.Combined with specific nationalconditions in China, criminal law should pay more attention to the protection of the law’s freevalue.In the legislative level, the setting of abstract potential damage offense must conform tothe principle of proportionality and verification. In the judicial level, make a substantialexplanation for the potential damage of abstract potential damage offense on the request ofinterpretativetheory. The accusedhas the right todefense in thejudicialproceedings.