The Research Of Abstract Potential Damage Offense Based On The Theory Of Risk Society

After the period of social development to industrial,social science and technology has brought to mankind endless convenience,but also brought a variety of social risks,which the famous German sociologist Ulrich Beck called "risk society." In order to prevent and control all kinds of potential social risks to the maximum extent,all countries in the world actively set up abstract potential damage offense in criminal law,and China is no exception.In recent years,Abstract potential damage offense has shown a trend of expansion in the criminal legislation of our country.The Criminal Law Amendment(eight)has increased the crime of dangerous driving,amended the standards for the incrimination of the crime of producing and selling counterfeit drugs,and the Criminal Law Amendment(nine)has also added a series of crimes related to terrorism and extremism.They all show that Abstract potential damage offense are more and more favored by lawmakers.The expansion of Abstract potential damage offense in criminal legislation has been highly concerned by the field of criminal law,but there is no agreement on many problems of Abstract potential damage offense,which leads to the fact that the abstract potential damage offense theory can not serve the judicial practice better.In order to enrich the research of the abstract potential damage offense and improve the function of the service,this article tries to study the related problems of the abstract potential damage offense.This article is divided into the following four chapters:The chapter one introduction to the theory of the abstract potential damage offense.The key to defining abstract potential damage offense is how to identify "abstract potential damage",There are two views on the understanding of abstract potential damage in theory: formal theory and substantive theory.This article supports the formal theory,that is,as long as the act complies with the statutory requirements,it is not necessary for the judge to determine the risk of the behavior according to the specific case.In order to understand the abstract potential damage offense accurately,this paper also makes a comparative analysis with the behavioral offense and the actual potential damage offense.The second chapter is the theory of risk society and the reform of criminal law.This part first analyzes the concept and characteristics of the theory of Risk Society;Secondly,it considers the existing principle of legal interest(the result of non-value theory).The theory of risk society has brought certain challenges to the traditional theory of criminal law.In some aspects,the theory of legal interest has become insufficient to fulfill the task of criminal law,and it is not enough to cope with the development of society,the demand for security in society has exceeded the need to maintain humility in criminal law.Based on the analysis of the above problems,this paper puts forward its own point of view,and holds that the traditional criminal law has gone to the road of security criminal law.The third chapter is the expansion of abstract potential damage offense under the theory of risk society.The expansion of abstract potential damage offense in criminal legislation meets the needs of the preposition of legal interest protection,which not only accords with the positive general prevention theory,but also avoids the difficulty of proof.This paper summarizes the performance of abstract potential damage offense expansion into three characteristics: acts of complicity crime;preparatory acts to implement and holding behavior as a chemical.Based on the new charges of terrorism and extremism in the Criminal Law Amendment(nine),this paper discusses the rationality of the establishment of the charges,and intuitively reflects the direction and characteristics of the expansion of abstract potential damage offense in our country.The fourth chapter is the reasonable limit of abstract potential damage offense.The excessive expansion of abstract potential damage offense will inevitably lead to restrictions on the rights and freedoms of individual citizens,and even suspected violations of human rights.Based on the final guarantee of criminal law,it is necessary to limit it.This paper limits the expansion of abstract potential damage offense from criminal legislation and criminal justice.Criminal legislation includes: Penalties should be lightly penalized;Create a special suspension of crime;Exclude the punishability of minor risky behavior.Criminal justice includes: abstract potential damage offense should allow the perpetrator to counter-evidence that there is no abstract danger to their actions.