Research On The Proof Of Possibility Element Of Potential Damage Offense

Modern society is a risk society.From the purpose of dealing with various risks and giving priority to the protection of specific legal interests or certain criminal policies,criminal law stipulates a number of potential damage offense.Potential damage offense is the concept of criminal law opposite to damaging offense,which refers to the crime that does not cause actual damage to legal interests,but takes the risk of actual damage to legal interests as the premise of punishment.Among them,"Potential damage" first exists as a fact of special constitutive elements of crime,so it is a fact.In criminal jurisprudence,there are two kinds of potential damage: concrete potential damage and abstract potential damage.Both of them are unified in nature,which are the possibility of causing actual damage to legal interest.Therefore,this paper holds that the substance of potential damage is the possibility of causing actual damage to legal interest.The actual damage of damaging offense has objective,stereotyped and observable objective performance,while possibility element has no external formation like the actual damage,and has no observable objective formation.It is a inference that "although the damage has not occurred,but from the existing state,the actual damage is urgent or foreseeable ".From the perspective of philosophy,norms of law and judicial practice,the objective existence of the possibility elements is both fact and value,which determines that it is quite difficult to prove "possibility" with evidence in judicial practice.The principle of evidentiary adjudication is the basic principle in the field of criminal procedure in the modern society ruled by law,which is quite rigid.It requires that all the facts related to conviction and sentencing should be proved by evidence.There are two modes of proof under the principle of evidentiary adjudication.The one is direct mode of proof.The other one is indirect mode of proof.Although there is no general agreement on a standard definition of two modes of proof,they are difficult to adapt the need of necessary to prove the elements of "possibility".The pure fact part of the possibility element can be proved in the modes of proof stipulated by the principle of evidentiary adjudication,while the value part of possibility element cannot be proved in these modes.The reason is “the value part of possibility” is the connection between reality and future established by the judicator according to his own experience.It is not objective reality.In order to adapt the needs of the proof of the possibility elements,on the one hand,the author thinks that we should adhere to the principle of evidentiaryadjudication.On the other hand,we need to fully understand the reality of implied value judgment in the process of proof of "possibility",rather than simply and mechanically denying its legitimacy by the principle of evidentiary adjudication.we need to fully understand the special effect of judicator mental impression.In addition,we need to pay attention to the questions and problems about free proof in the judicial practice of our country,and explore a series of alternative proof methods to realize the objectification and socialization of the implied value judgment,so as to realize the supervision of the judicator mental impression.The methods of alternative proof include but are not limited to the establishment of guiding cases,the introduction of expert assistant and the establishment of presumption rules.