Research On The Legislative Limitation Of Abstract Dangerous Crimes In Criminal Law

Abstract dangerous crime is one of the hot issues in the theoretical research of criminal law in recent years.As a concept of "introduction",the concentrated discussion in our country has lasted less than twenty years.Theoretical research needs a certain period of digestion,as a result,the concept of this field is ambiguous and controversial.The lack of understanding of concept leads to many doubts in judicial application,at the same time,abstract dangerous crime shows an increasing trend in the legislation,so we have to face these problems.It can be said that judicial application and legislative status become the direct impetus to study abstract dangerous crime.The previous research on the basic theory gradually enriched the construction of its dogmatic,and also affected the rules in judicial practice.On this basis,the theory also gradually began to pay attention to the legislation of abstract dangerous crime.As the analysis and induction of the criminal law,it is necessary to go back and forth between the theoretical logic and the legal provisions.The legislation limitation of abstract dangerous crime is not only a kind of value promotion,but also a kind of method exploration.In the aspect of value,the rationalism of criminal law is advocated.In the exploration of method,we try to set out from the perspective of experience,on the basis of macroscopic legal principles and abstract nature of dangerous crime,and try to further concretize the applicable conditions of abstract dangerous crime at the legislative level.The article has four parts:Part 1 is about problem presentation,First,it combs the legislative history of abstract dangerous crime in China,summarizes the response and discussion of criminal law theory both to the expansion of criminal law and the increase of abstract dangerous crime;Second,it sums up the application problems in practice,including the "noncrime" problem,the cross of criminal law and administrative law,and questioning the validity of abstract dangerous crime.Part 2 further discusses the risks brought by the extended application of abstract dangerous crime in criminal law,including explicit risk and implicit risk.The explicit risk mainly refers to the tendency that the abstract dangerous crime is easy to bring "excessive criminalization" in practice;the implicit risk mainly refers to the functional dilemma of criminal law,including the blind instrumentalization of criminal law and the tendency of omnipotence of criminal law.Finally,we advocate the scientific rationalism of criminal law legislation.Part 3 is reflection on the theoretical proposition of abstract dangerous crime.Firstly,it reflects on the macro level,including the theory of legal interest as the basis of punishment of abstract dangerous crime,as well as the positive general prevention as the background theory;Secondly,the basic concept of abstract dangerous crime is reconsidered,mainly including the distinction and relationship between abstract dangerous crime and concrete dangerous crime,abstract dangerous crime and behavior crime,"danger" of abstract dangerous crime.Part 4 explores the way of limiting the abstract dangerous crime in legislation.First,it generalizes the "access" standard of abstract dangerous crime on the whole,and sets the access premise according to the nature of abstract dangerous crime;Second,it explores the classification standard of abstract dangerous crime,including the level of legal interest,the type of classification,the relationship between crimes and punishments,and the necessity of punishment.