Research On The Issues On Abstract Potential Damage Offence

In recent years,the abstract potential damage offence showed a trend of expansion in China's criminal legislation,not only the "criminal law amendment eight" increased the crime of dangerous driving,modified the crime standard of the production and sale of counterfeit crime,but also the "criminal law amendment nine" added a series of terrorism and extremism crime,which shows the abstract potential damage offence has made more and more favored by legislators.The expansion of abstract potential damage offence in criminal legislation is highly concerned by the criminal law circles.As a result,the criminal law circles accelerated the study of abstract potential damage crime.However,there is no consensus on the theoretical problems of abstract potential damage offence,which leads to the fact that the abstract potential damage offence theory can not serve the judicial practice better.In order to enrich the research of the abstract potential damage offence and improve the function of the service,this article tries to study the related problems of the abstract potential damage offence.In addition to the introduction and conclusion,this article will focus on four aspects of the abstract potential damage offence,the four parts are as follows:The chapter one is introduction to the theory of the abstract potential damage offence.Before defining the abstract potential damage offence,we must discuss the abstract potential damage.There are two different views on the abstract potential damage,that is,the formal theory which is standing on the standpoint of the behavior of non-value and the substantive theory which is standing on the standpoint of the outcome of non-value.The article holds the theory of the behavior of non-value,and the abstract potential damage means fictional damage in the formal theory.Therefore,the definition of the abstract potential damage offence is that the specific behavior of the perpetrator is complied with the provisions of the constitution,namely,the existence of a dangerous state,the act constitutes a crime.According to the concept of he abstract potential damage offence,the object of the abstract potential damage offense is a complex object,which includes not only the public security;the objective aspect includes the dangerous behavior,but not the dangerous state;the dangerous behavior includes the action and omission;the subjective aspect is only the intention,the fault does not belong to the abstract potential damage offence.The second chapter is the comparison between the abstract potential damage offence and related terms.The article mainly discusses the difference between the abstract potential damage offence and the actual potential damage offence,the behavior crime and the independent preparatory crime.There are three main differences between the abstract potential damage offence and the actual potential damage offence: the difference between the element;the difference between the burden of proof;the difference of the basis of establishment.The abstract potential damage offence belongs to the behavioral offense,but the scope of the behavioral offence is obviously larger than the scope of the abstract potential damage offence.The independent preparatory crime also belongs to the abstract potential damage offence,however,it is not equal to the abstract potential damage offence.The third chapter is the legitimacy basis of the expansion of abstract potential damage offence.Firstly,this article discusses the expression of the expansion of legislation.For the expansion,the directions of the discussion are as follows: maintaining social order;protecting law interests;realizing criminal active general prevention function;avoiding the difficulties of burden proof.The fourth chapter is the reasonable limitation of expansion of abstract potential damage offence.The details are as follows: restricting it from the criminal law modesty;lightening the criminal penalty on legislation;creating the special discontinuation on legislation,making a compact to the criminal justice from the Supreme People's Court;adding the "proviso".