On The Risk Factors In Potential Damage Offense

With the rapid development of transport, the public began to notice some dangerous driving behaviors including driving while intoxicated, driving without a license, speeding. In 2011, The 8th Amendment of Criminal Law first formulated provide the crime of dangerous driving, which showed that in the China has begun to deal with “automobile era” of dangerous driving behavior to ensure the road safety. Since the announcement of the crime, social support for this legislation is clearly inadequate, someone even held opposing views, believe these dangerous driving behaviors are merely administrative violation if they did not cause casualties instead of criminal activities. The key reason in doubt is that we only introduce the overall concept of potential damage offense from German criminal and Japanese criminal, but did not accept the concept of specific and abstract danger, and the criminal statute did not explicitly show the presence of abstract danger, resulting in our scholars had different views of the element of risk for dangerous driving offenses.Given the risk society has gradually formed, although the core of criminal law is protection of legal interests, the legal interest protection has already changed from real damage to concrete and abstract danger. The tentacle of criminal law initially limited to real damage criminal extends to the punishment of concrete potential damage criminal and abstract potential damage criminal, to some extent that already showed potential damage has become important part of modern legislation, such as environmental crime, economic crime and traffic crime. As we are still in the transitional times of criminal law, potential damage offense in theory is a well-developed area, there are many theoretical gaps in it, the risk factor is still unclear and lead to some problems in the judicial application. So as a "living law", it should adapt to the trend of social development, the 8th Amendment of criminal law and the 9th Amendment of criminal law draft prescribed dangerous driving behaviors, we should combing the theory development of potential damage offense, especially making explanation of classification criteria and attribute judgment. Coupled the crime is associated with the public and ensure the public safety, the essay set the dangerous driving offense as a starting point, researching on the diminishing relationship among real damage, concrete danger and abstract danger, determine the minimum protection standard of legal interests in the risk society.In summary, the research point of the paper is the provision of Article 133, to study the changes of criminal law theory, the design of dangerous driving offense system and dangerous factor of the crime. The theoretical part of the paper main reference to the doctrine of Germany, Japan and Taiwan, The context of this paper is to discuss the following questions:Because of the criminal policy and theory rheology precede the statute, while criminal policy and social situation are related closely. Therefore, in the first chapter of this paper, the criminal law theory has already changed with the advent of risk society. Although the core foundation of criminal law is still legal interests protection, the starting point of criminal penalty has been reached to risky behavior, the network of criminal law penalties has changed from real damage to concrete and abstract potential damage, so in the future we should make risk assessment before legislation provision of some particular behaviors, determining whether the behavior exceed the critical point and constitute the potential damage offense.The second chapter mainly discussed about the concept, illegal element and judgment of danger. Only when we determine the natural concept of danger, examine the doctrine of historical context and understand the true meaning of danger, we can accordingly stipulate the clause of potential damage offense. So in the chapter, following the introduction of Germany and Japan for dangerous concept and element, I will specifically analysis the criteria, punishment between the concrete and abstract danger, in the end put forward my own view.The third chapter is based on the distinction between the concrete danger and abstract danger in the second chapter, to define the nature of danger in the crime of endangering public security, combined with overseas laws and acts to determine the value of the existence of abstract danger. The 9th Criminal Law Amendment(draft) had added two dangerous driving behaviors. The paper reviewed the existing provisions on the basis of legislation.The last chapter is the conclusion, presented the integration of research results in first three chapters. In addition, this paper only focused on the concrete, abstract danger and potential damage offense under criminal law, which did not involve in attempted offence, unrealized offense and other problems.