Research On The Recognition Of "Dangerous Method" Of The Crime Of Endangering Public Security By Dangerous Means

The crime of endangering public safety by dangerous means is stipulated in articles 114 and 115 of the current Criminal Law together with the four charges of arson and explosion.At the beginning of legislation,the legislature took into account the diversity of criminal methods,forms of crime in practice.The crime was used as the "save clause",in order to supplement the possible omissions of legal provisions and adapt to the changing development of society.However,due to the vagueness of the charges and the generalization of legislative terms,it is often applied in various cases in recent years.Common behaviors such as drunken driving causing serious injury or death,poisonous driving,stealing well covers,private pulling the power grid,etc.This crime shows the trend of expanding and applying in judicial practice,and becomes one of "pocket crimes" in judicial practice.This article holds that the main reason why the crime of endangering public security by dangerous means is that the "dangerous method" lacks stereotyping and specific criteria of judgment,which leads to the expansion of the application of the crime in judicial practice.For the judgment of "other dangerous methods" in this crime,the general theory refers to the method that is comparable to the four acts of arson,water bursting,explosion and the release of dangerous substances,but there is no specific criterion for the judgment of the comparability.Through the study of the nature of "danger" in "dangerous method",this paper draws lessons from the equal position model,with a view to narrowing the distance between legal norms and the facts of specific cases,putting forward concrete and feasible judgment standards,and further clarifying the extension of "dangerous method",so as to solve the problem of "pocketing" in the judicial application of this crime.The full text is divided into five parts.The first part is the introduction.This paper clarifies the theoretical and practical significance by explaining the expansion and pocketing of the crime of endangering public security by dangerous means in practice.In terms of research methods,this paper uses empirical research,case studies and other research methods to construct the criteria for judging "dangerous methods".In this paper,there are some innovations in research methods and theoretical basis.The second part is about the legislative evolution and characteristics of the crime of endangering public security by dangerous means.Through studying the legislative evolution of the crime of endangering public security by dangerous means,this part summarizes the three legislative characteristics of the crime: vagueness of legislative terms,subjectivity of value judgment and tendency of judicial interpretation expansion.Among them,the fuzziness of legislative terms is the legislative root of the enlargement and pocket application of this crime in practice.The third part is the statistics and problems of the types of identification of "other dangerous methods" of this crime in judicial practice.This part uses empirical method to make an empirical analysis on the behavior types and reasoning of 200 judicial documents identified as "crime of endangering public security ".At the same time,10 typical cases are selected to prove the logic of judicial adjudication of this crime in judicial adjudication.Finally,by analyzing the empirical results and studying typical cases,this paper concludes that the judicial organs have three problems in identifying the elements of "other dangerous methods",namely,the disorder of identification,the nihility of elements and the pocketing of charges.The fourth part discusses the construction of the specific criteria for judging "dangerous methods".The specific criteria for judging "dangerous methods" include general criteria and special criteria.On the one hand,the judgment of "dangerous method" should conform to the general criteria of "specific danger" such as time criteria,data selection and ruler selection;on the other hand,the judgment of "dangerous method" should also conform to the special criteria of this crime.This article refers to the core evaluation elements.In the establishment of special standards,this paper draws lessons from the model of equivalence,extracts six core evaluation criteria from typical cases: directivity of public safety,direct result,one-time,rapid spread,danger out of control and suppression of resistance,defines the "dangerous method" of this crime from different aspects,and makes the behavior have the characteristics of stereotyping.The fifth part discusses the application of the criterion of "dangerous method" in judicial practice.The judgment criteria based on the equivalence model can only be applied to specific cases,but can not be applied to a kind of behavior.Whether a certain kind of behavior can be identified as a "dangerous method" also needs to be combined with the specific circumstances of the case.This part chooses several kindsof common acts in judicial practice and makes qualitative analysis considering different situations.