On The Crime Mechanism Of Abstract Dangerous Crime

Facing the challenge of risk society,in order to make up for the deficiency of the benefits of the traditional criminal law protection law,based on the considerations of avoiding social risks and maintaining public security,the risk criminal law came into being.The early protection of legal interest is the requirement to prevent new risks and then to guarantee the safety value.The abstract dangerous crime becomes the tool to carry the basic value orientation of the criminal law.In order to seek security,the legislator expands the scope of legal regulation with great fanfare.The establishment and modification of abstract dangerous crime is regarded as an effective remedy,which results in the continuous expansion of the scope of penalty and the gradual vagueness of the overall normative structure.At the same time,the appearance of the constitutive elements of abstract dangerous crime can easily lead the judge to follow the plain meaning of the formulated law,mechanically and hastily apply the law,resulting in the unreasonable expansion of the punishment scope of special cases.Therefore,it is an inevitable requirement to carry out the principle of modesty and restraint of criminal law and protect human rights to explore the way to abstract the crime of dangerous crime.In view of the problem of the punishment expansion of abstract dangerous crime,it cannot be solved at the level of legislation at present,so at least it is necessary to limit it in the theory of interpretation.To interpret the constitution of abstract dangerous crime in the direction of materialization,and to give full play to the crime making function of the proviso of article 13 of the criminal law,this is the "strict advance" of abstract dangerous crime.Abstract danger is not the constitutive element of abstract dangerous crime.The defendant can prove that there is no abstract danger in his behavior,this is the "wide release"."Strict in and wide out" mode is a more appropriate mechanism for abstract dangerous crime.In this paper,normative analysis,empirical analysis,induction,deduction and comparative analysis are used to study the above problems.In addition to the introduction and conclusion,the paper is divided into four chapters,the main contents are as follows:The first chapter is the present situation and analysis of abstract dangerous crime.This chapter selects several typical crimes.Through empirical research,it makes data statistics and analysis on the crime status of abstract dangerous crimes,and draws the conclusion that the crime rate of abstract dangerous crimes is very low,and then explores the causes and harms of the low crime rate of abstract dangerous crimes.The second chapter discusses the abstract dangerous crime through the substance of the constitution of the crime to explain the path of crime.First of all,this paper discusses the basic problems of the crime arising from the proviso of article 13 of the criminal law applicable to abstract dangerous criminals,including the legal basis and the choice of the applicable method of the crime arising from the proviso of article 13 of the criminal law.Secondly,the article discusses the choice of rules for the crime of abstract dangerous crime.In the mode of substantive interpretation of crime,abstract danger is not the element of constitutive elements of abstract dangerous crime.The most important method of substantive interpretation of the constitution of abstract dangerous crime is the substantive interpretation of abstract dangerous behavior.The third chapter introduces the crime of abstract danger crime through the defendant's counterevidence that there is no abstract danger.The defendant's counterevidence is to fill the loopholes in the proviso.Based on the consideration of interest measurement and the fairness of the lawsuit,the defendant's assumption of the burden of proof does not violate the basic principle of the burden of proof.Not all abstract dangerous crimes can be proved by counter-evidence,and the defendant's counter-evidence is limited.The reduction of the prosecution's burden of proof will not disturb the sequential nature of the burden of proof in the procedure.The prosecution still bears the burden of proof before the defendant,and the standard of proof that the defendant needs to meet is lower than that of the prosecution.Chapter four discusses the legal consequences of abstract dangerous crime.Abstract dangerous crime does not show that the actor's behavior is legal,the legal consequences of abstract dangerous crime lead to the connection between criminal crime and administrative lawlessness,this paper tries to resolve this problem.