The Potential Damage Element In Potential Damage Offense

The potential damage element refers to the risk that the legal benefits caused by illegal acts in potential damage offense are urgently infringed,and it is an essential element for the establishment of potential damage offense.The potential damage element is not only the punishment basis of potential damage offense,but also reveals the origin of potential damage offense.Therefore,it has great significance in the study of potential damage offense.With the increasing social risks,whether criminal legislation or criminal justice,the study of potential damage element is very important.On the one hand,potential damage is the basis for legislators to reasonably set dangerous potential damage offense.On the other hand,it also affects the establishment of potential damage offense and the judgment of its stop form.The nature of the potential damage element has always been controversial,and the academic have different opinions.There are mainly three kinds of ideas:one believes that the potential damage belongs to the attribute of behavior and is inseparable from the implementation of behavior.This is based on the judgment of behavioral valueless theory;One believes that the potential damage belongs to the criminal consequence,which is a natural expansion of the concept of traditional consequence,so the potential damage offense belongs to the consequential offense;there also has opinion that the potential damage belongs to the third state independent of the behavioral attribute and the consequence attribute,and the state exists objectively,and there has an essential difference between the two.This paper thinks that the potential damage should belong to the consequence,which helps to rationally locate it.At the same time,the potential damage can be divided into concrete and abstract potential damage.This is the consensus of the academic.Because of the special nature of abstract potential damage,judicial practice usually uses the implementation of behavior to represent the occurrence of abstract potential damage.The concrete potential damage needs to be identified in judicial practice,reasonable determination of the content,time and criteria of the concrete potential damage is helpful to the specific identification of the potential damage crime,at the same time,distinguishing it from the behavioral offense.The criteria for judging concrete potential damage offense is generally divided into perpetrator standard,general human standard,and scientific standard.The perpetrator standard refers to the judgement of the potential damage occurring at the time of the crime from the perspective of the perpetrator.The general standard judges after the crime by the public.The scientific standard advocates judging by the scientific rule.This article tends to identify the general standard,which is more conducive to general prevention,and more convenient to the identification of the potential damage in judicial practice.The potential damage element belongs to elements of constitution of Crime or the element of accomplished offence,and there is a controversy in the academic in our country.If the potential damage element is identified as the element of the constitution of Crime,the occurrence of the potential damage indicates that the crime is established,and it has another standard for offense accomplished.If the potential damage belongs to the element of accomplished offence,the establishment of potential damage offense is not necessarily based on the potential damage.Because the legislative model of the German-Japanese legal system is different,it is not appropriate for Chinese criminal law to directly quote the theory of these countries,but it is necessary to judge the actual situation of our criminal law.This paper thinks that under the premise of criminality and crime as two dimensions,the potential damage can indicate that the crime established or the crime accomplished is both ambiguous,and the two do not conflictFinally,the application of the potential damage in the unfinished form of crime is equally worthy of study.Studying the difference between a potential damage offense and an attempted offense,starting from the basis of the punishment of the attempted offense,and clarifying the difference in damage between the two,is conducive to defining the attempted form of the potential damage offense.In the suspension of crime,accurately grasping the time of the potential damage and the role in composition of the crime can also help to determine the suspended form of the potential damage offense and break the absurd conclusion that the potential damage offense will be suspended after accomplished.