Study On Legislative Restriction Of Abstract Dangerous Crime

The study of abstract dangerous crimes plays an important role in the theory of criminal law in our country,although its generation and development have been accompanied by all kinds of disputes,but with the arrival of the risk era,the related charges of abstract dangerous crimes frequently appear in the amendment of criminal law is an indisputable fact.Compared with actual harm crime and concrete danger crime,abstract danger crime has more concise constituent elements and lower threshold of crime.Therefore,expanding the abstract dangerous criminals is conducive to more comprehensive protection of legal interests,and at the same time it is also beneficial to social development.However,abstract dangerous crime has both advantages and disadvantages.Too much expansion of abstract dangerous crime will inevitably be criticized by the public for excessive interference in civil liberties.Therefore,how to reasonably control the "degree" of expansion of abstract dangerous crime is particularly important.dangerous crime belongs to the category of consequence crime.It is different from behavior crime,and the degree of danger caused by behavior is different from concrete dangerous crime.The basis for the legitimacy of abstract dangerous offender legislation mainly includes the theory of legal protection,the preventive function of criminal law,and the concept of flexible paternalism.In the moment,the arrival of the risk society,the guidance of criminal policy and administrative administration are the real reasons for the expansion of abstract dangerous crime in our country.Based on these considerations,the legislature has begun to actively add abstract dangerous crime.Generally,as for the legislative mode of abstract dangerous crime,we should take the position of "positive limitation and contraction".On the premise of recognizing the functional value of abstract dangerous crime,we should further consider the hidden concern of the expansion of abstract dangerous crime,and hold that only the moderate legislative restriction on abstract dangerous crime is an appropriate path.By analyzing specific charges of abstract dangerous crimes legislation in our country,and an empirical analysis of the judicial application of these charges,it is not difficult to examine the abstract dangerous crimes problems exposed by the theoretical level,the expansion of the abstract dangerous crimes seem to conflict with the austerity of criminal law principle,easy to break the balance between the function of criminal law,legislation imbalance of resources disposition;From the practical level,the expansion of abstract dangerous crimes will make judicial resources more strained,have an impact on the dual sanction system,and even hinder the innovative development of economic society.Considering that the passage of abstract dangerous crime is blocked in judicial practice and the limitation on theory is difficult to realize,it is most appropriate to control its expansion from the source of legislation.In the legislative restriction of abstract dangerous crimes,it is necessary to meet the constitutionality premise,absorb the spirit of proportionality principle,adhere to the modesty doctrine of criminal law from the macro concept.It is necessary to follow the legislative principle from the technical selection,pursue the legislative efficiency,and carry out the pre-evaluation and review.The specific path is as follows: First,limit the scope of the abstract dangerous crimes in the major protection of interests,major law can be understood as a collective legal interests,super personal law benefit,limit behavior in the real possibility of harm results,general and highly cover of abstract risk behavior,will not be transformed into real harm result of behavior and accidental and low correlation behavior rule out outside the scope of the regulation in the abstract dangerous crimes.Secondly,the subjective elements of abstract dangerous offenders should be clearly defined as intentional and negated negligence.Thirdly,the legislative restrictions on abstract dangerous crimes need to optimize the expression of specific crimes,and the expression of provisions should be clear and accurate to avoid the ambiguity of related concepts and terms.Some minor illegal acts can be excluded from crimes or reduced penalties by setting a mitigated crime constitution.Finally,the legislative restriction of abstract dangerous crimes should consider the lightest penalty,that is,reduce the free sentence of some crimes,expand the scope of application of control and detention,in order to balance the penalty allocation among crimes,and consider the independent application of limit fine or proportional fine,in order to avoid the elastic expansion of abstract dangerous crimes.