Research On Abstract Potential Damage Offense In Anti-terrorism Legislation

In the criminal legislation of the major countries in the world,abstract potential damage offense shows a trend of expansion,for example,Britain,America,Germany and France law set up a large number of abstract potential damage offence in terrorist crime.The reason why abstract potential damage offense is favored by legislators is that the risks in modern society are unpredictable and uncertain,and the duration and scope of influence are incomparable to those of traditional risks.One example is the risk of terrorism that has become a global public hazard.An analysis of the anti-terrorism legislation work of Britain,America,Germany and France shows that when modern criminal law responds to terrorist risks,the inertial approach is to incorporate preparatory actions and pre-preparatory preparations for crimes of violence and terrorism into the scope of anti-terrorism regulations and expand the scope of terrorism.The criminal circle of crimes is in line with the attributes of abstract potential damage offence.At the same time,it increase the legal punishment for violent crimes and severely limits the terrorists' legal responsibilities.Through an overview of the legislative process of anti-terrorism in China,since 1997 when the Criminal Law criminalized terrorist acts for the first time,the three amendments to the criminal law represented by the Ninth Amendment to the Criminal Law adopted subsequently have been all involved in anti-terrorism matters,forming terrorist and extremist crime groups,adopting the legislative form of abstract potential damage offense,and forming a relatively perfect criminal law regulation system.In the process of incrimination,the anti-terrorism criminal law network is becoming more and more strict,the scope of punishment is expanding,and the time of criminal intervention is constantly ahead;in the punishment link,the allocation of statutory punishment is gradually improved,and the punishment is more severe.The introduction of criminal legislation against terrorism by abstract potential damage offense is not only based on the consideration of the practical needs of punishing terrorist crimes,but also provides theoretical support for them by the concept of criminal law conceived under the risk society.Under the background of the increasing risk of terrorism,the establishment of potential damage offense has some legitimacy and rationality.Its advocacy of pre-intervention could prevent such unpredictable and uncertain terrorist risks from turning into real harm and nip them in the bud.There is no doubt that the establishment of abstract potential damage offense is of great importance to the secret anti-terrorism criminal law network,the ahead time of the former criminal law intervention,consideration of the gaps in the protection of the legal interests,and the prevention of the large-scale implementation of violent and terrorist acts.As a result,the legislative form of abstract potential damage offense has the character of being respected by the legislator.But the expansion of abstract potential damage offense is also controversial.We should see the inherent negative effects of this form of legislation:based on the characteristics of pre-intervention of abstract potential damage offense,this has the impact on the principle of modesty,the principle of responsibility and the concept of law interest that the traditional criminal law adheres to,which has the legislative inclination of over-offence and is easy to expand the scope of the crime circle and to a certain extent undermines the value of criminal law to protect civil liberties and human rights.There are different opinions on how to play the unique quality attribute of potential damage offense and avoid the appearance of negative effect,especially in view of the understanding of "abstract danger".The abstract dangerous area is divided into the danger of behavioral meaning and the danger of consequence meaning,and on this basis,the coexistence of formal inspection mechanism and substantive investigation mechanism is formed.The formal inspection mechanism roughly equates a certain behavior conforming to the subjective and objective elements with the realization of the abstract danger.The substantive inspection mechanism requires that the abstract risk should be identified in combination with the legal expression at the should however level and the specific facts of the case at the actual level.It also allows the actor to negate the existence of abstract dangerous state.In the link of positive incrimination,the author makes an overall investigation of the danger of behavior meaning and the danger of result meaning.In the link of reverse crime,the "proviso" of Article 13 is used to carry on the counter evidence consideration,which provides the opportunity of crime for the behavior which does not have social harmfulness in essence.