Legitimacy And Borders Of Abstract Potential Damage Offense Commitment In Risk Society

potential damage offense have many provisions in the German Penal Code and the French Penal Code in the 19 th century and the Japanese Penal Code in the early 20 th century.In recent years,abstract potential damage offense in our country's criminal legislation also Show expansion trend.As the "darling" of the theoretical research on criminal law in various countries,the legislative practice and academic achievements of abstract potential damage offense witnessed the large-scale and substantial expansion in recent years.It aroused our vigilance.When we talk about abstract potential damage offense to resist social risks,we should also review the modest and restrained theory of criminal law and the theory of legal interests and social dangers,and put more effort into studying the limits of the expansion of abstract potential damage offense.In order to prevent the excessive expansion of abstract danger,we must make the legislative restraint and the judicial restriction.Therefore,on the basis of combing abstract potential damage offense in our country and combining with dangerous social background,this article starts with the basic idea that the punishment of abstract potential damage offense should be based on restrictive restraint.In addition to the introduction of this article,the conclusion is divided into four chapters:The first chapter mainly expounds the impact of Baker's theory of risk society on the reform of China's criminal law theory.The impact is divided into two aspects.One is the impact on the traditional criminal law "legal interest" concept,the other is the breakthrough of the traditional criminal law principle.The article argues that there is a positive side to interpret the changes and new trends of criminal law in our countryfrom the perspective of risky society.However,using the theory of "risk criminal law" is too radical and impulsive.Because the criminal law to deal with the risk by no means simply through the establishment of risk criminal law model to emphasize the intimidation of criminal law.On the one hand,risk-based social theory can not lay the foundation for risk criminal law directly.On the other hand,the ever-increasing social risk can not provide a realistic basis for risk criminal law.The generalization of risk criminal law will bring a certain degree of disintegration of human rights and freedom.Especially in today's China,under the precondition that the self-supervision of the system is not yet perfect,the introduction of the risk criminal law and the criminal policy of risk undoubtedly poses the risk of increasing the erosion of citizens' rights and freedoms.The second chapter focuses on the basis of the legitimacy of abstract potential damage offense expansion of research.It points out that the research on the legitimacy of abstract dangerous criminals can be traced back to two basic theories,that is,formal and substantive.This paper argues that the theory of substance is more appropriate.The reason lies in the fact that it stands in the result worthless position,judging "abstract danger" from a substantive point of view and using the existence of "abstract danger" as the basis for criminal punishability so as to achieve both the coordination of safety and freedom.In essence,it not only makes up for the malpractice of the formal basis that it lacks the justification basis for punishing abstract dangerous criminals without preconceived violation of law and interests,but also can establish a relatively clear and stable scope of penalty and prevent its abuse.The third chapter mainly defines abstract potential damage offense.This chapter makes a distinction between abstract potential damage offense and related concepts.Firstly,the boundary between abstract potential damage offense and specific potential damage offence is defined.Whether it is necessary to distinguish between abstract potential damage offense and specific potential damage offence has always been debated in the field of criminal law theory.The article combs two views of the academic community on this issue and holds that it is still necessary to separate the abstract potential damage offense from the dangerous criminals,and the standard of distinction should be the "dangerous state" although there are some differences between them.On this basis,put forward the "theory of risk" as the theoretical criteria to distinguish the "dangerous state" of them.Secondly,this article refutes the unidentified dangerous criminals and behavioral criminals in the academia.Criminalperpetrators of crime and abstract potential damage offense according to different theoretical premises to develop different taxonomies.If there is some kind of cross-similarity between them,then the existence of a dangerous criminal based on a negative abstraction is clearly nonsense.The fourth chapter analyzes the reasons and ways to reduce the scope of the punishment of abstract potential damage offense.The chapter is divided into three parts.The first part mainly analyzes the reasons for the limited scope of the punishment of abstract potential damage offense,including the legal basis based on the theory of legal interests and social harm,the principle of moderation of criminal law and the reality of policy.The second part puts forward the legislative path to reduce the risk of abstraction.The scope of absurd legislation is limited to typical dangerous acts and the legal penalties for light sentences are allocated.The third part puts forward the path of judicial supervision of abstract potential damage offense.First,the application of abstract potential damage offense should exclude intentional or subjective wrongfulness and liability;secondly,article 13 of the General Code of the Criminal Code may apply to convicted crimes;thirdly,evidence-based mechanisms should be introduced to control the abuse of abstract dangerous offenders.