| With the continuous development of cities,there is an increasing number of high-rise buildings,and the phenomenon of throwing objects from high altitude has become more often,which seriously infringes the safety of citizens themselves and their property,and meanwhile,it even poses a huge threat to public safety,which makes it a great social harmfulness.In response to the endless emergence of cases of throwing objects from high altitude,the Supreme People’s Court issued the "Opinions on Properly Trial of High-altitude Parabolic and Falling Cases"(hereinafter referred to as the"Opinions")in November 2019,The "Opinions" emphasizes that it is necessary to distinguish clearly between the behavior of throwing objects from high altitude and falling objects from high altitude,in terms of criminal conviction and civil liability,and it also stipulates numerous rules in detail for handling cases of throwing objects from high altitude in judicial practice.On June 28,2020,the"Amendments to the Criminal Law of the People’s Republic of China(11)(Draft)”(hereinafter referred to as the "Draft")was released on the 20th session of the Standing Committee of the 13th National People’s Congress,the first of which is the regulations about throwing objects from high altitude.To be more specific,that is adding two paragraphs as the second and third in Article 114 of the Criminal Law "Those who throw objects from high altitude that endanger public safety shall be sentenced to criminal detention or public surveillance and shall also concurrently or solely be fined","People who commits any of the acts mentioned in the preceding paragraph that cause injury or death or other serious consequences,and meanwhile constitute other crimes,shall be convicted and punished in accordance with the provisions of the heavier punishment." But later,On October 13,2020,the "Amendment to the Criminal Law of the People’s Republic of China" Proposal(11)(Second Deliberation Draft)"(hereinafter referred to as”Second Deliberation Draft")issued in the 22nd session,deleted this article.And in Article 27,a paragraph is added after Article 291 of the Criminal Law"Those who throw objects from buildings or other height,shall be sentenced to fixed-term imprisonment for no more than one year,criminal detention or surveillance,and shall also concurrently or solely be fined if the circumstances are serious." " Anyone who commits the acts mentioned in the preceding paragraph and constitutes other crimes shall be convicted and punished in accordance with the provisions of heavier punishments." Eventually,on December 26,2020,the "Amendment to the Criminal Law of the People’s Republic of China(11)"was passed in the 24th meeting,and it retained the relevant provisions of the "Second Deliberation Draft" on behavior of throwing objects from high altitude.On February 26,2021,the 63rd meeting of the 13th Procuratorial Committee of the Supreme People’s Procuratorate passed the "Supplementary Provisions of the Supreme People’s Court and the Supreme People’s Procuratorate on the Implementation of the Criminal Law of the People’s Republic of China on Determining Crimes(7)"(hereinafter referred to as "Supplementary Provisions"),which stipulates Article 291bis(Article 33 of the Criminal Law Amendment(11))as the crime of throwing objects from high altitude.In addition to the legislative level,there are also enormous controversies regarding the cases of throwing objects from high altitude in judicial practice.The "objects" thrown from high altitude,the circumstances in which the behavior occurs,the objective harm directly or indirectly it caused and the subjective mentality of the person are extremely varied.At the same time,it is difficult to find the exact person,which leads to a certain degree of complexity in the behavior itself.It is also difficult to identify,and there is a great deal of disputes about how to convict after identifying.By clarifying the concept of behavior of throwing objects from high altitude and its identification criteria,this article analyses the current criminal laws and regulation issues involved in the crime of behavior of throwing objects from high altitude,in order to solve the problem of the identification of behavior of throwing objects from high altitude and the criminal law system in judicial practice.There are five parts in this article.The first part mainly discusses the definition of behaviors of throwing objects from high altitude from two perspectives,objectively and subjectively.Its illegality is analyzed with the dualism of worthless behavior and is divided into three types according to the legal norms violated by the behavior of throwing objects from high altitude.It also analyzes the illegality of these three different types of behaviors of throwing objects from high altitude by way of examples.At last,a distinction is made between the behavior of throwing objects from high altitude and falling objects from high altitude,denying the method in the"Opinions" that distinguish between intentional and negligent simply by subjective And the corresponding distinguishing methods are introduced in detail.The second part mainly introduces the current status of the legal regulation of the behavior of throwing objects from high altitude in our country,and the two aspects of legislation and justice from two different legal norms of civil law and criminal law.The third part mainly analyses the necessity and feasibility of using criminal law to regulate the behavior of throwing objects from high altitude.The fourth part mainly analyses the dilemma encountered by the behavior of throwing objects from high altitude in the criminal law system.First of all,there are many controversies about the legal nature of throwing objects from high altitude,and a clear legal nature of the behavior is an important prerequisite for conviction and sentencing.In addition,there are still many controversies regarding the determination of the crime of throwing objects from high altitude and whether separate convictions are required,and these disputes also directly affect the legislation and justice of throwing objects from high altitude.In the end,after the promulgation of the "Opinions",the problem of hypercorrection and excessive strikes began to appear in judicial practice.According to the provisions of the "Opinions",there have been a phenomenon that except for the special circumstances that constitute the crime of intentional injury or intentional homicide,other types of throwing objects from high altitude have been convicted of endangering public safety.And this makes the crime a cover for throwing objects from high altitude."Criminal Law Amendment(11)" established a new crime-the crime of throwing objects from high altitude.But this crime has a great possibility of becoming a pocket crime of throwing objects at height.Based on the analysis of the above-mentioned dilemma,the article constructs the content of the fifth part,which clarifies the path of using criminal laws to control the behavior of throwing objects from high altitude.The point of this article is that the establishment of the crime of throwing objects from high altitude and using the current criminal law to regulate the crimes of throwing objects at height are not advocated,including the crime of endangering public safety by dangerous means,the crime of provoking troubles,the crime of intentional homicide,the crime of intentional injury,and the crime of negligence causing serious injury or death and crime of major safety accident.In summary,this article follows the ideas of what is the behavior of throwing objects from high altitude,why the behavior should be criminalized and how to convict the behavior,and tries to clarify the related knowledge system of throwing objects from high altitude,and conduct further research on the criminal laws and regulations of cases of throwing objects from high altitude,in order to achieve the purpose of better use of penal means to regulate the crime of throwing objects from high altitude. |
