The Reflection On The Abstraction Of The Crime Of Concrete Endangerment

In the criminal judicial practice of our country,the crime of concrete endangerment has generally appeared abstract phenomenon.This phenomenon,as well as the theoretical disputes related to the criteria for distinguishing crimes of abstract and concrete endangerment,presents a relationship of "mutual causation" : On the one hand,the distinction between "vacillating" and "plausible" standards may lead to completely different judgments on the types of endangerment crime with the same charges;On the other hand,the determination of the type of endangerment crime of individual crimes as "preconceived" will also affect the selection of distinguishing standards for endangerment crimes in criminal law theory.In judicial practice,taking some of the crimes that are generally defined as crimes of concrete endangerment in the theoretical and practical circles as samples,the judicial documents reflect that the abstract phenomenon of the crime of concrete endangerment in different crimes has its own characteristics,but also has its common features.First,judge the existence of legal dangerous behaviors only from a static and plane perspective,that is,do not conduct a dynamic and threedimensional comprehensive evaluation of "endangerment",and directly identify the existence of "concrete endangerment" with the legal implementation behavior.Second,the "concrete endangerment" is directly inferred by the nonstandard form of the license and qualification at the administrative law level,that is,the substantive judgment of the "endangerment" at the criminal law level is not carried out.Third,we do not attach importance to professional scientific identification of "risks" in the field of specialization,that is,we mainly use empirical facts as the basis for the judgment of "concrete endangerment",and do not supplement the necessary scientific identification conclusions.Fourth,concrete degree of "endangerment" is not fully demonstrated,that is,it is only generalized,or the basis is insufficient and the argument is weak,that is,the "external representation" is not fully extracted,and the loss and harm of unrelated "concrete endangerment" is taken as the basis,and the identification of the characteristics of "concrete endangerment" is not comprehensive.For the trend of criminal legislation under the guidance of "risk prevention",criminal law theory and criminal justice are slightly less vigilant and attached importance to,which leads to the abstraction of "concrete endangerment".There are three main reasons.First,the differentiation criteria between the crime of abstract endangerment and the crime of concrete endangerment are chaotic.The theory of "danger degree" does not have identifiability and operability.At the general conceptual level,there is no basis to indicate which is more dangerous,"abstract endangerment" or "concrete endangerment";among different crimes,it is impossible to compare the "degree of danger" by such standards as statutory punishment;the judgment of "degree of danger" can only be carried out in the judicial determination of individual cases.The distinction between "behavior risk and result risk" cannot explain the manifestation of "risk" and the relationship between "risk" and infringement of legal interests."Abstract endangerment" has the complex nature of behavior and result,and its "dangerous result" can be perceived both empirically and proved by evidence science;"concrete endangerment" also has the complexity of act and result,that is,legal dangerous act,which adds the danger in the sense of criminal law to "dangerous result".Second,the abstraction of the content of legal interest.it does not pay attention to the realistic interest basis,that is,it points to some taboo or the authority of a specific institution,and has nothing to do with the perceived interests of the public,such as life and property;it has shaken the principle of protection of legal interests and gradually transformed the object of criminal law protection into a highly abstract security order;judicial practice relies on the punishment mode of the crime of abstract endangerment.Third,there is the assumption of "controllable process" for hazard prevention.the uncertainty of "endangerment" will eliminate the normalization of "concrete endangerment",and because the criminal law describes "concrete endangerment" as "relatively certain",it brings many contradictions and obstacles to the actual judgment;the practitioners did not realize the anti-concept effect of "security",but constantly expanded the scope of attack in order to seek "security";the positive general prevention effect of criminal justice activities is overestimated,but the results are not ideal in practice.There are four main negative consequences of the abstract phenomenon of the crime of concrete endangerment.First,create a simplified and powerless "security criminal law".If the criminal law is superstitious about the purpose of "safety" and safeguards "safety" through simplified and rough systems,it will improperly limit the public’s right to choose their outlook on life;in the management of "danger",modern criminal law tends to "magnify" the issues that need to be dealt with rigorously and carefully;oversimplified "security" will impose disproportionate restrictions on citizens;the actual powerlessness of "security" tends to exacerbate collective fear.Second,destroy the stability of the law.A large number of relevant cases in practice have led to the neglect of the necessity of distinguishing crimes of abstract endangerment from crimes of concrete endangerment;the introduction of concepts such as the crime of quasi-abstract endangerment leads to the complexity of the criteria for distinguishing the crime of abstract endangerment from the crime of concrete endangerment;the expression of some judicial interpretations leads to the blurring of the criteria for distinguishing crimes of endangerment;it is believed that abstract endangerment crimes are the intermediate stage between pre legal illegal acts and crimes of concrete endangerment,which can easily blur the boundary between pre legal illegal acts and criminal illegal acts;a general and rough assessment of ’concrete risks’ is not conducive to the effective diversion mechanism of the binary punishment system.Third,weaken the legitimacy of criminal law intervention.Ignoring the limitation of "concrete endangerment" on the scope of criminal establishment;eliminate the natural disprovability of "concrete endangerment";negate the priority of crimes of concrete endangerment in the legislative model.Fourth,it damages the communication rationality of criminal law.Desalinate the relationship between criminal law and society at the level of normative function;obstruct the communication between criminal law and non-specific social members;destroy the predictability of criminal punishment for crimes of concrete endangerment.The response strategy to the abstract phenomenon of the crime of concrete endangerment is the concrete identification of "concrete endangerment".First of all,there are three theoretical premises:First,we should adopt the theory of differentiation of constituent elements,and identify crimes of endangerment based on the constituent elements explicitly stipulated in the legislation,namely "endangering public security","endangering public security" and "enough to..."."Abstract endangerment" and "concrete endangerment" are only two forms of legislative technology choice,both of which need evidence to prove that there is no proposed danger;the constituent elements of "concrete endangerment" have a restrictive effect,and crimes with such symbolic expressions cannot be interpreted as crimes of abstract endangerment.Second,it is necessary to clarify the content of the protection of legal interests of concrete endangerment crimes according to the specific interests of individuals.Specific interests are the core of protecting legal interests for the crime of concrete endangerment;the legal interest needs to be clearly defined by "people" as the subject of interest;abstract order needs to be reducible to personal interests in order to be protected by criminal law.Third,it is necessary to build a rational understanding of the risk prevention function of criminal law,that is,to give up the conceptual understanding of "endangerment" in criminal law,to recognize the future of unlimited nature,and to establish the concept of penalty prevention under the restriction of the principle of proportionality.Secondly,it is necessary to judge the "concrete endangerment" from a dynamic and three-dimensional perspective: combine the prior judgment at the time of the act with the subsequent judgment after the act;Based on the characteristics of "concrete endangerment" in different criminal constitutions,comprehensively extract and comprehensively evaluate the risk formation factors and actual trigger factors in the time and space range.Finally,the identification standard of "concrete endangerment" should adopt the scientific rule standard under the rational restriction of criminal law communication: on the one hand,the scientific rule standard should be adopted in the identification of facts.The evaluation report is issued by a relatively high-level research unit other than the case-handling unit as an objective,impartial and neutral evaluation opinion to conduct professional risk measurement and provide important reference.On the other hand,in terms of value judgment,judicial organs should make independent and rational judgments on the results of scientific identification.The judicial adjudication needs to show the society that criminal judicial activities have scientific knowledge of "endangerment",rather than subjective arbitrariness,and try to persuade the public to recognize and accept the resulting "endangerment" attention standards and response mechanisms.