Research On Abstract Potential Damage Offense And Its Legislative Limit

Abstract potential damage offense is a type of crime of possible violation of specific legal interests on legislative intent.Abstract potential damage offense is a part of behavioral offense.Behavioral offense can be divided into two types: one type is the crime completed and at the same time with "specific legal violation",such as the crime of illegal intrusion into the house;the other type refers to the crime of merely "abstract legal interest violation" after completion.For example,the abstract potential damage offense of drunk driving belongs to the latter.In the construction of abstract damage offense,the harmful act itself has the possible infringement danger of specific legal interests.Unlike abstract potential damage offense,specific potential damage offense have an external behavioral impact.Individual cases bring real danger to the behavioral objects.Abstract potential damage offense have unique dangers in behavior itself,and the punishment has nothing to do with whether a dangerous state appears in practice or not.In recent years,the legislation of abstract potential damage offense has shown an expanding trend,and the number of abstract potential damage offense has gradually increased.The scope of abstract potential damage offense legislation has also become broader.The expansion of abstract dangerous criminal legislation is justified.The addition of abstract potential damage offense legislation is a necessity to strengthen legal protection,a key means to improve civil consciousness of rules and an important measure to achieve a reasonable distribution of judicial power and administrative power.However,in the process of legislation addition,there have inevitably occur practical problems: the "dualization" sanctions system will be under greater attack;and the influx of judicial cases will lead to increasing working pressure of the judicial organs;and lack of related provisions of hierarchical system of crime record and abolition system of crime record have led to the increasingly negative effect caused by record effect.In face of practical problems of much working pressure of judiciary authorities after the legal addition of abstract potential damage offense,we propose judicial measures to solve problems,such as improving the non-prosecution procedures and introducing penalty order system.The legal addition of abstract potential damage offense is supposed to adhere to the rational boundary,and the legal expansion should be controlled within a reasonable limit to avoid the proliferation of the legislation.First,the limitation of legislative principles can initially limit the expansion of abstract potential damage offense.The principle of legal interest protection focuses on the justification of the criminalization of abstract dangerous acts;the principle of proportionality addresses the issue of the reasonable division of judicial power and administrative power and the balance between crime and punishment;The modest principle of criminal law deals with the "ambiguity problem",that is,in the process of legal interest measurement or proportional measurement,the criminal law will not be used when not a necessity,and if the penalties of the criminal law can be balanced with lighter measures,they should not be heavier.Secondly,it is necessary to carefully choose the scope of the legal addition of abstract potential damage offense.The choice of the legal scope should mainly focus on the following key areas: areas in which national security and public safety are endangered;areas where the consequences of harm are easy to generalize;areas where the consequences of harm are difficult to recover effectively.Finally,we need to restrict the legislative norms of abstract potential damage offense.Make reasonable choices of the crime to be criminalized.The "prohibited" behavioral code should be clear and combined with the actual situation of China’s criminal legislation.The "quantitative" factors should be appropriately set for the crime to be criminalized.The legislation of abstract potential damage offense is mainly based on plot-restricted mode.