The Determination Of "Dangerous Method" In The Crime Of Endangering Public Safety By Dangerous Method

In the provisions of Articles 114 and 115 of the Criminal Law of our country,the crime of endangering public security by dangerous means appears as a safe clause.The positive significance of application of this crime is that it has made China's criminal law system become more perfect,which can effectively fight against the emergence of this type of harmful behavior.However,due to the extensive and universal scope of the crime of harming public safety by dangerous means,and the penalties of the crime are characterized by heavy punishment,it is easy to make the public opinion more satisfied and the public's anxiety more relaxed.Because of this reason,this clause is widely used.The problem arising from this is that it may affect the application of legality,which is the basic principle of criminal law,and even raises the controversy of scholars on whether the crime should be abolished.In order to punish crimes in a reasonable and effective manner in judicial practice,and to fully protect human rights,it is necessary to further analyze and clarify the uncertainties in the crime,namely the"dangerous means".Based on the actual,scientific and systematic perspectives,the article begins with the analysis of the difficulties of identification of dangerous means and causes of the dilemma,then try to elaborate on the relevant factors for identifying"dangerous means".The problems of identification of the"dangerous means"in this crime are mainly reflected in the following points:First,there are problems in defining the"public safety." Improper definition here can be divided into two parts.The first is what is"public".Including how public space should be defined,and the meaning of"the public".The second is what is "safe." For the victim,it is the personal and property safety that has been damaged.For ordinary people outside the case,it is a kind of risk and a sense of insecurity.The second is that the criteria for determining the"dangerous means"are one-sided.The so-called one-sided here refers to the fact that the influence of heavy punishment on most judicial personnel.They prefer the heavy punishment when some harmful consequences occur,and even choose heavy punishment before convicting the suspect.The sufficiency,inevitability,and urgency of the dangerous means only remain in their mouth but not their brain.Because of lack of objective judgment standards,they even use analogical interpretation in criminal cases.The third is judging cases are interfered by other relevant factors.There are many factors in abusing the"dangerous means".In this process,whether it is public opinion or public sentiment,it will have impacts on it.Therefore,in order to avoid such a situation,judicial workers should alleviate the public's psychological sentiment towards heavy punishment.What is more important is to clarify the scope of"public security"and build a more effective judgment standard.On this base the application of this safe clause will be more feasible.To grasp the characteristics of public safety,we need be aware of the legal interests of the crime.If an act is judged as a"dangerous means"it will be harmful to"public safety".Based on this consideration,if a method is to be identified as"dangerous means",it must be a public safety hazard.This is a basis condition.Therefore,when we are identifying "dangerous means",the first task is to clarify the scope of "public safety",which depends on the grasp of the two core concepts of"public"and"safety".In my understanding,"public safety"refers to the life,health and safety of many people or unspecified people,and even the safety of major public and private property on this premise.This kind of harmful behavior is uncontrollable and unpredicted.It will be a threat to the lives of most people at any time.The criteria for the"dangerous means"contain at least the following three points:the first one is the inevitability between the dangerous means and the serious harmful consequences(highly probability).The second is the urgency of serious harmful consequences.The third is that it is equivalent to the danger of arson or poisoning.The so-called inevitability,urgency,and equivalence,the core lies in:under the existing technology level,without external factor intervention or specific circumstances,when the behavior has been implemented,whether the serious harmful consequences caused by the behaviors are directly or inevitable,whether the danger is equivalent to arson or poisoning,and whether manpower it is possible to change or avoid the consequences which are directly caused by the"dangerous means".If it is direct,inevitable,and manpower is difficult to change,and the degree of danger is the same as that of arson or poisoning,it should be characterized as"dangerous means";if these three conditions cannot be met at the same time,it cannot be considered as a dangerous method.We also need consider other factors when identifying"dangerous means".In the current social development process,social risks are unpredictable,and there are more and more behaviors that threaten the lives and safety of the people.In order to avoid the emergence of these behaviors and thus secure the safety of public,the corresponding measures should be taken to reduce the emergence of harmful behavior.Although it does not have serious consequences,we still need nip these danger behaviors in the bud.Affected by these factors,in the criminal legal system of our country,the status of potential damage offense has naturally been improved.In this stage,the academic field has widely recognized that the crime is a potential damage offense.However,there are still many unsolved problems,to be specific,question one is this crime is abstract potential damage offense or concrete potential damage offense;question two is the relationship between article 114 and paragraghl of article 115 in criminal law.The above issues need to be fully resolved,then we can have a deeper understanding of the crime.As a result,the resolution will also have a positive effect on the identification of"dangerous means".It is necessary to be fully understood that this crime is a concrete potential damage offense from the perspective of constitution of a crime.From the point of view of whether the offense is accomplished,the relationship of Article 114 and paragraghl of Article 115 of criminal law is attempted crime and accomplishment crime.At the same time,there are some other factors should be considered:Strict adherence to the statutory principle of legality,which means avoid using this kind of safe clause when an act has conforms the constitutive elements of other crimes.Facing the inevitable problem that investigation and legislation are always falling behind the new crimes in legal history process,which means judges can't choose an inappropriate crime because they pursue a long term prison.Try to reduce the interference of public opinion on the judiciary.Through the analysis of many related factors in identifying the-"dangerous means",I hope my work can provide assistance to judicial workers.I hope this crime can be used more effectively in punishing vice and praising virtue in judicial practice,and facilitate the implementation of the statutory principle of legality,the principle of unification of crimes and punishments,and the criminal policy of"justice tempered with mercy".Certainly,the ultimate aim is maintaining judicial justice and promoting social harmony and stability.