Research On The Punishment Of Attempted Instigates-the Problem And The Consummation On The Second Paragraph Of Article 29 In The Criminal Law Of PRC

From the changes in Article 1254 of the Civil Code,it can be found that some provisions are the reservation of the original articles,while others are controversial issues involved in more cases in practice.The purpose of adding these provisions is to further clarify and emphasize,so as to show the attitude of the legislators and respond to the voice of the masses.Such as prohibition of throwing articles,tort liability of the infringer,right of recourse after compensation,etc.There are also some supplementary provisions on the problems existing in the current judicial practice.For example,the newly added regulation that relevant authorities should first take charge of investigations is to regulate the behavior of some front-line law enforcement officers and prevent them from not performing or actively performing their duties.In addition,Article 1254 of the Civil Code also makes it clear that the construction manager shall bear the responsibility when he fails to fulfill the security obligation,in order to unify the judicial standards,and clearly includes the property management company and other building managers into the scope of persons responsible for throwing objects at altitude,so that it is possible to deal with it in the same procedure in judicial practice.The full text is divided into four parts:The first part is the analysis of the current situation of the judicial application of Article1254 of the Civil Code,that is to say,the relevant cases involving Article 1254 of the Civil Code are summarized,and it is found that the main unreasonable problems are concentrated in three aspects: the related problems of the application of Article 1254 of the Civil Code to property damage liability caused by the blockage of public sewer;The determination of the specific security obligations of property service enterprises and the determination of the share of the liability for high altitude parabolic damage and the problem of the liability sequence.The second part is about the property manager of the property service enterprises and other building managers should take the necessary security measures.Through guiding cases,the identification standards for the security obligation of property service enterprises in high-altitude throwing infringement cases are supplemented.Guiding cases are quite guiding opinions summarized by the Supreme People’s Court from judgments.When judicial workers seek solutions to difficult cases,they first look for guiding cases.Guiding cases are used to supplement the cases of throwing objects at high altitude that are not summarized in relevant judicial interpretations.The third part is the determination of the share of the liability for parabolic damage and the problem of the liability sequence.Through the analysis of relevant cases,it is found that "average liability" is generally applied in the cases of throwing objects at high altitude,which is unreasonable and unfair.Through the determination of the scope of "possible harm" and the analysis of the sequence of liability,firstly,the subjective negligence of building managers such as property service enterprises is determined,and their responsibility in proportion or supplementary liability depends on the subjective state of the third party of the actual harm.Secondly,in the case that the third party cannot be determined,if it is presumed that the third party is at fault,the building manager such as the property service enterprise shall bear the responsibility according to the share,which will encourage the third party to actively evade the responsibility;Finally,if the third party is presumed to be intentional,the security obligor shall assume supplementary liability to ensure that the security obligor has the possibility to recover from the third party found out later.