The Discussion On The Limitation Of Abstract Potential Damage Offense

Abstract Potential Damage Offense,as one of the branches of dangerous crime,is welcomed by legislation because its theoretical model meets the needs of the development of modern criminal law.Although the legitimacy of Abstract Potential Damage Offense is still controversial,it can not be denied that it is expanding in legislation.In this context,it is correct to find appropriate ways to regulate Abstract Potential Damage Offense.At present,the content of Abstract Potential Damage Offense restriction can be divided into two dimensions:legislation and justice.The legislation mainly adopts the principle of proportion to test the legislative necessity of Potential Damage Offense,and tries to restrict the legislation and application of Abstract Potential Damage Offense by way of legislation explicitly specifying special minor illegal situation At the judicial level,it focuses on limiting the scope of punishment for abstract dangerous offenders.By examining the legitimacy of Abstract Potential Damage Offense,we can find the theoretical basis of limiting,and discuss the direction of limiting path.This article mainly uses the literature reading and the case analysis method,divides the thesis into four parts to discuss.The first part makes a general investigation on Abstract Potential Damage Offense.The concrete contents include the controversial concept of Abstract Potential Damage Offense and different kinds of Abstract Potential Damage Offense.The present situation of the legislation and research on Abstract Potential Damage Offense in China and Taiwan is investigated,and it is found that Abstract Potential Damage Offense in the current legislation of both mainland and Taiwan At the same time,it can be found that both China and Taiwan are deeply influenced by Germany and Japan.The second part discusses the necessity of Abstract Potential Damage Offense limitation,in other words,why it is necessary to limit Abstract Potential Damage Offense.This part through the current legislative trends and judicial practice of the existence of controversial issues,to prove the reality of the need to limit.In the theoretical necessity part,it is mainly due to the expansion of the Abstract Potential Damage Offense themselves,the attack on the traditional theory,the existence of excessive compression of freedom and the possible infringement of human rights.The third part mainly proves abstract danger.The justification basis of the limitation of dangerous crime is why the limitation of Abstract Potential Damage Offense can be carried out.This part analyzes from the theory foundation and the reality foundation,regarding the Abstract Potential Damage Offense punishment foundation may be summarized into the form theory and the substance theory at present two kinds,but the limited theory proper source is the legal interest infringement as the judgment crime establishment or not the substance theory,the form theory own theory foundation is not reliable.The actual basis is mainly based on the current dual legislative model which combines general and criminal violations in China,which can provide support for the regulation of general violations after restriction,complete the legislative link between general and criminal violations,and the difference of penalty system demand,the difference makes it prudent to treat dangerous offenders domestically.Finally,i discuss the path of Abstract Potential Damage Offense limitation,that is,how to limit Abstract Potential Damage Offense.First,it is necessary to explore the path which can not be used to test the danger of behavior in the way of restriction which has already been discussed in theory.Secondly,it is feasible for the author to select the subjective and objective duty of attention of the perpetrator.Secondly,it is necessary to observe and draw lessons from the existing practice,including legislation and justice.In order to exclude the clause,specifically explicitly exclude the typical minor illegal situation;the setting of objective punishment conditions,etc.;judicially,it mainly includes the substantive understanding of the "proviso" clause,as well as the existing guidance provided by the procedural law.