Research On Judicial Identification Of Abstract Dangerous Crime

dangers are typical dangers inherent in behavior.Due to the characteristics of objectivity and potentiality of abstract danger,it is difficult for the judiciary to accurately demonstrate the existence of abstract danger.The only way is to internalize abstract danger into specific behaviors,and judge from the side of the implementation of specific behaviors.Abstract dangerous criminals,that is,legislators observe that a certain type of behavior poses a typical threat to specific legal interests based on ordinary life experience.It is a crime in a dangerous state（abstract danger）,which has the characteristics of superpersonality to protect legal interests,intermediary and potentiality of behavior objects,and abstractness of judicial determination.Abstract dangerous offenders are essentially different from behavioral offenders,their creation basis and legal interests are different.Abstract dangerous offenders and concrete dangerous offenders have different degrees of danger and different standards for judging danger.In order to cope with the new risks in the risk society,the abstract dangerous criminals,which reflect the tendency of criminal law to function,began to expand,causing controversy in the theoretical circles.The existence of abstract dangerous criminals has the basis of legitimacy and conforms to the principle of modesty in criminal law;the exclusion of abstract dangerous criminals from the scope of negligent crimes is in line with both the provisions of the criminal law and the penalty policy;the judicial determination of abstract dangerous criminals has a dispute between the theory of form and the theory of substance.To say that there are unexplained contradictions,one should adhere to the theory of formalism.But at the same time,it is necessary to revise the formal theory to overcome the irrationality of the formal theory to identify abstract dangers,and to internalize the concept of substantial danger to the formal,so as to realize the unity of the criminal form and substance.To objectively identify abstract danger,the substantive interpretation of the provisions of the Criminal Law should be carried out with reference to the provisions of Article 13 of the Criminal Law,and the scope of the provisions of the law should be expanded or narrowed through legal interpretation,so that the behavior that conforms to the provisions of the Criminal Law must have the substance of infringement of legal interests.Require.Implementing specific crimes such as dangerous driving requires a substantive explanation of the concepts of drunkenness,roads and even motor vehicles.When subjectively identifying an abstract dangerous crime,it is necessary to have both cognitive and volitional factors.Abstract danger is the characteristic of behavior.The perpetrator has knowledge of the dangerous behavior,that is,the knowledge of the danger of the behavior.The perpetrator insists on the basis of knowledge.To carry out a dangerous act shows that his will,at least in terms of his will,is laissez-faire to the occurrence of abstract dangers.