Discussion On Subjective Fault Of Potential Damage Offence

The discussion of potential damage offence often focuses on the performance of the danger, the extent and the real harm and other objective aspects. Neither judicial practice nor criminal theories focuses on the subjective aspect. For example, the crime of dangerous driving is undoubtedly recognized as an intentional crime in judicial practice. In the specific judicial determination, it is only based on the act which meets the objective behavior. Even if overnight wine, without the knowledge of drunk driving, accidental dangerous driving and other difficult problems, it will not question the guilt of the crime of subjective, and have a tendency to incriminate based on objective behavior. This method of criminal identification is not only unscientific, but also may infringe on human’s other rights. What’s more dangerous, as part of the criminal law scholars actively respond to the risk of social and emulate the appeal of foreign legislation, coupled with a significant risk of an accident after some irrational echo of public opinion, the legislation of damage offence has a tendency to gradually expand its specification, and the subjective aspect also spreads from intent to negligence.The attitude of legislation to expand should remain calm. In distinguishing the concept of risk and danger, intention and negligence, specific potential damage and abstract potential damage as the like, nature of crime types of specific potential damage offence and abstract potential damage offence should be clear- the former belongs to consequential offence and the latter belongs to behavioral offence, and there is certainly negligent specific potential damage offence but no negligent potential damage offence. Meanwhile, study on subjective fault of potential damage offence suggests that deliberate potential damage offence intentionally points to the result of real harm. According to the new theory of negligence, and theoretical basis of negligent specific potential damage offence, negligence of negligent specific potential damage offence points to specific risks. Finally, according to the status of current legislation, we can expect that the legislative trends of potential damage offence and propose necessarily restrictive methods.Besides the introduction and conclusion, the rest text consists of four parts:Part one: the issues of crime of dangerous driving leading to investigate on subjective aspect of potential damage offence. Practical departments generally consider the subjective fault of dangerous driving sin is intent, but scholars have intentional theory, negligence theory and strict liability theory, and the reason relations were based on the relationship of crime and penalty, the impact on the rights as well as the practice of judicial practice. These are not factors that should be considered, and it should proceed to determine the guilt of a crime from the nature of regulatory behavior. At the same time, subjective fault has important influence on the penalties range, response to new social behavior and other human’s rights.Part two: the arguments on subjective fault of damage offence: First, potential damage offence is divided into specific potential damage offence and abstract potential damage offence as the theoretical basis for the subsequent discussion. Secondly, three kinds of view on subjective fault of potential damage offence are theory of comprehensive negligence, partial negligence and intention. Finally, through questioning and analyzing the three theories, it concludes that as the danger which exists in reality can become results in normative sense. Specific potential damage offence belongs to consequential offence, and abstract potential damage offence belongs to behavioral offence, so partial negligence theory is correct. There are deliberate specific potential damage offence, deliberate potential damage offence and negligent potential damage offence, but there is no negligent potential damage offence.Part three: identification of subjective fault of potential damage offence. First, it is the content interpretation of intention. After distinguishing risk and danger, the paper concludes that the intention of both potential damage offence and specific potential damage offence is the awareness and desire to real harm. According to the relationship between the specific and abstract potential damage offence and independent legal punishment provisions, there is no specific damage offence attempted but suspended. Secondly, it’s the analysis of the negligent specific potential damage offence. The negligent specific potential damage offence has legitimacy basis of objective harm and subjective condemnation. The obligation to avoid results should be extended to avoid specific danger, while the specific potential damage should be judged on the merits. Finally, introduce the legislation of foreign negligent potential damage offence, and analyze our country’s direction, principles and scope of the legislation.Part four: expectation of legislative and suggestions. Legislation of potential damage offence reflects a trend of expansion, mainly concluding the scope of interests protected and subjective fault. And this expansion will lead potential damage offence legislation to be abused, combine with the collective interests to erosion of individual freedom, the practice of criminal legislation overhead, and cause a series of negative effects of selective enforcement. Therefore, it’s necessary to make the legislative restrictions to the scope of legislation, subjective fault and the amount of crime. In addition, more substantive judgment on justice should be made as well.