Study On The Judicial Limitation Of The Abstract Potential Damage Offense

The study of the abstract potential damage offense has always played an important role in criminal law theory.Although it is controversial because of its premature involvement,which may lead to the continuous expansion of penalties,it is an indisputable fact that in recent years,China’s criminal law has continuously added the relevant offences of abstract potential damage offense in the form of amendments.In order to reasonably control the "degree" of their access to the criminal law,it is necessary to explore the restriction path of the punishment scope.The perfection of criminal justice is more direct,realistic and effective than criminal legislation.Therefore,this paper chooses judicial restriction as the research path.On the basis of the analysis of abstract dangerous theory,combined with the judicial status and dilemma,this paper puts forward two aspects of perfection in criminal justice,namely,the limitation of conviction and the limitation of sentencing,so as to realize the protection of human rights while resisting risks.In addition to the introduction and conclusion,this paper is divided into four parts,totaling 45,000 words,the main contents are summarized as follows:The first part is an overview of the basic implications of abstract potential damage offense.Clarifying the definition and constitutive characteristics of abstract potential damage offense to clarify the theoretical premise and basis of the discussion.Based on the provisions of our criminal law and the system of our crime constitution,the abstract potential damage offense should be defined as an intentional or negligent typical dangerous act led to dangerous state of the public security,and take it as a form of the establishment of the crime or the completion of the crime.The abstract potential damage offense need to be related to public safety in the object,the abstract dangerous state should be regarded as an unwritten constituent element,and the actor must be guilty subjectively.At the same time,regarding the legitimacy of abstract potential damage offense,this paper agrees with compromise theory,and proposes to take the judicial restriction of abstract potential damage offense as the research perspective.The second part is the judicial status and dilemma of abstract potential damage offense.Taking several common abstract dangerous crimes as research samples,this paper sampled the judgments of the crime of illegal possession of firearms,arson and illegal manufacture of explosives.On the basis of analyzing the basic judicial characteristics of the three crimes,this paper comprehensively analyzes the problems and shortcomings of the three crimes in the judicial application.It is found that in terms of conviction,there is no acquittal judgment,and the channel of removing the crime is seriously blocked.The reason is that in the judicial concept,it is too biased towards the protection of legal interests and neglects human rights protection;in terms of applicable methods,the formal judgment is popular,but the substantive judgment is less;in the content of evaluation,the judgment of dangerous state is neglected,which restricts the accurate qualitative evaluation.In terms of sentencing,the overall situation is mild,but the way of restriction is single and the judgment is confused.The reason is that in judging content,important sentencing circumstances are omitted,which affects the accurate sentencing;in the way of restriction,there is dependence on probation path and lack of other means;in the result of penalty,the penalty is relatively light,but there is also imbalance between crime and punishment.The third part is the conviction restriction of the abstract potential damage offense.It is necessary to adhere to the constitutional elements of crimes,that is to say,the object of crime,the objective aspect of crime and the subjective aspect of crime should be limited.It is necessary to increase the intensity of the application of the provisions of the "proviso",which will ensure that abstract dangerous acts with minor circumstances and less social harm are excluded from the scope of conviction in judicial practice.Emphasis should be placed on the use of substantive interpretation methods to judge abstract danger,so as to achieve the principle of proportionality and further limit the scope of conviction of abstract potential damage offense.At the same time,in the proceedings,the defendant is allowed to use the principle of disproof to exclude danger.The fourth part is the sentencing restriction of the abstract potential damage offense.It is necessary to adhere to the principle of proportionality,center on the judgment of abstract danger,comprehensively search for the sentencing circumstances of the case,standardize the application of statutory sentencing circumstances and discretionary sentencing circumstances,and pay attention to the impact of special case circumstances on sentencing,effectively restrict the sentencing of abstract potential damage offense,in order to ensure the realization of justice.For cases with minor criminal circumstances and minor subjective malignancies,we should strengthen the application of exemption from criminal punishment,improve the application rate of probation judgment according to law,and effectively reduce the negative effect of penalty on the premise of insisting in the principle of proportionality.