In our criminal law dangerous crime concept

  • Created:
  • / Author: Aaron Lewis
Abstract: the danger is the concrete dangerous state caused by the harmful behavior; the definition of the concept of dangerous criminals should not consider the crime. Dangerous crime in China's Criminal Law refers to the behavior harmful behavior by the implementation of the resulting concrete dangerous state as the crimes of crime.
Keywords: dangerous form of crime; concept; risk
As a basic concept in the theory of criminal law, crime of dangerous and actual damage offense is a criminal types corresponding, holds the important status in the world of criminal legislation.
Dangerous crime is generally the importance, for the protection of law specialty in legislation concerning. However, defining the concept of dangerous crime is controversial and divided in the study of the theory of the criminal law in our country. Even in the research on the theory of foreign criminal law, dangerous crime concept there is no consensus. On behalf of the German criminal classical school character binding thought "dangerous although the concept in criminal law is necessary, but can easily be misinterpreted and the use of the wrong.
"The concept is to solve legal problems and a necessary tool.
Not limited to professional concept of strict, we cannot clearly and rationally thinking of law.
The concept of dangerous crimes in the criminal theory of scattered about the harm result, attempted crime, crime theory system, therefore, correctly grasp the concept of dangerous criminals is accurate and applicable provisions of the key dangerous crime in our criminal law. This paper from the dangerous crime "dangerous" and crime investigation, and tries to re define the concept of dangerous crimes, with a view to theoretical research of dangerous criminal modest.
A dangerous criminal, "dangerous" understand Japanese scholar Kimura Rji pointed out: "the concept of risk is a dangerous concept. This is dangerous because dangerous crime concept itself has multiple meanings and not easy. To sum up, the Chinese and foreign criminal law scholars about the dangerous crimes "dangerous" understanding the major one) behavior of danger. Should say that, on the one hand, risk include "dangerous" and "behavior of human behavior (generalized) risk". The former refers to the act of personal danger, also known as recidivism possibility; the latter refers to the risk of violations against the interests of law on the objective. Risk behavior and can be classified as dangerous behavior property risk and as a result of the.
Two) subjective danger. Subjective danger theory based on the said conditions in the theory of causality in. They say that the so-called "dangerous" is just a product of human ignorance, therefore, the so-called "dangerous" is decided by the subjective observation.
In the view of the subjective danger that scholars, existence is reasonable, the so-called "possibility" is only a kind of subjective imagination of people.
In the real world, there can be only "inevitability" infringement, which can only exist "invasion" and "no violation of" two kinds of situations, but may also exist against the possibility of so-called "". Therefore, in the view of the subjective danger that scholars, everything is good, the so-called "dangerous" criminal law science is just a guess of human in the past and the future status based on the.
Three) objective danger theory. Objective danger theory based on causal relationship. Causal relationship theory founder Chris pointed out that, in the criminal law should be strictly distinguish between "the possibility of an objective" and "subjective probability", while the objective possibility should be causal relationship to illustrate that with the condition as the foundation, if a behavior will lead to some results in the usual case, between behavior and result has a causal relationship, which has considerable. This kind of causal judgment is not the product of human ignorance, on the contrary it is only through the accumulation of human historical product. Therefore, the objective danger theory scholars think, the so-called "dangerous" refers to the "against the objective possibility".
Four) the subjective and objective danger theory. The principal objective danger theory of scholars believe that the concept of risk, the existing criminal law in our country is the combination and unity of subjective risk concept and objective risk concept, i.e. risk as an objective existence and existence, but also as a based on subjective understanding of the inference exists. Therefore, in the eyes of the main objective danger theory scholars, "dangerous" is subjective, but after the general judgment, which is also the objective.
Subjective danger said seriously harmful results, but the judgments of the dangerous state of equal possibility in dangerous situations occur, complete denial of objective things, in fact is a product of idealism and agnosticism. Objective danger theory think the danger is "against the objective possibility" of this point is worth affirmation, but crime has violated the objective possibility, if you insist on objective danger theory point of view, it did not cause harmful results of crime can be considered dangerous crime, and this will occur will conduct crime paradox as a dangerous crime processing. The subjective and objective danger theory attempts to subjective danger that compromise and coordination with the objective risk, but not further explain many seemingly dangerous crime actually not as dangerous situation, which is a kind of appear wrong theory. Behavioral risk value risk is the fact that the situation caused by the harmful behavior, but the risk that further classification theory as the dangerous behavior and the risk as a result) also easy to cause many seemingly dangerous offense but in fact not as dangerous crime problem.
We believe that the risk of dangerous status, different attributes with the crime itself is the objective situation in behavior after. Therefore, dangerous crime should be confined to the dangerous state specific conditions for the crime. Some scholars had pointed out that, danger in that crime is specific risk refers to the behavior's actions, the causal relationship between the harmful behavior and state. In the dangerous situation, as a dangerous criminal elements of the dangerous result must be the concrete dangerous state of objective facts through various specific expressed. The concrete dangerous state that exists or not is the foundation and key to set up the dangerous criminals, and dangerous degree, can only have an impact on the dangerous crime sentencing. Therefore, risk our country stipulated in the specific provisions of criminal law make are concrete dangerous crime, they are happening in specific risk results as necessary risk constitution of crime.
The criminal law of China 114th the arson case. The criminal theory of our country traditional generally believe that the article 114th of the criminal law of arson stipulated shall be as abstract dangerous crime, arson results should be abstract dangerous consequence. However, as long as the in-depth analysis of arson of a crime will be found, arson dangerous criminals and not as abstract dangerous crime, arson results and not as abstract dangerous consequence of understanding, but should refer to the health of others, the life and the major public and private property ownership of the dangerous state, namely the results as a concrete dangerous state. Because of the dangerous state, arson must at least appears to be objective and damage degree of can be understood from the outside, but the damage has not yet reached the "independent burning" and constitute accomplished degree.
In the criminal law of our country stipulates the dangerous crime into concrete dangerous offense and abstract dangerous crime is not appropriate. Abstract dangerous criminal as a type of dangerous criminals, is continental criminal law theory, [6] but the danger in criminal legislation in China should be to make specific risk for the establishment of conditions of the crime, the abstract dangerous crime and crime is just in the ways of expression are different, therefore, the danger in the criminal law of our country the prisoners should only contain specific dangerous crime. However, in order to avoid punishment no dangerous behavior, some scholars of our country put forward the so-called "theory allow rebuttal presumption", [7] if the criminal suspects, defendants have sufficient evidence to prove that the risk does not exist, then you can remove the behavior person penalty. However, the so-called "theory allow rebuttal presumption", from the source point of view, apparently to judicial organs "the defendant guilty presumption" based, and the theory itself is a violation of the presumption of innocence of the basic principle that. Obviously, the basic principles we need not to admit the abstract dangerous crime in the criminal procedure law and damage.
Therefore, the so-called "dangerous" is the concrete dangerous state caused by the harmful behavior.
The danger is risk refers to the behavior of the risk as a result, namely the "dangerous state after the behavior".
Study two, dangerous crimes crime since the concept of "dangerous" from the mainland legal system country criminal law theory is introduced to our country criminal law field, defines the concept of dangerous crime and accomplished offense crime under the indissoluble bound. Many scholars on the definition of concept of dangerous criminals tend to be linked with the crime accomplished offense.
As our country criminal law theory thinks, dangerous crime refers to the behavior's dangerous behavior of some harmful result caused by dangerous state law as the signs of accomplished offense of crime.
Also the scholar thinks, dangerous crime refers to the dangerous behavior has the objective danger cause certain consequence as the necessary condition of the crime constitution of crime. But the scholars also think, judge dangerous accomplishment standard should be harmful acts performed by human behavior whether to reach the objective state dangerous enough to cause certain consequence.
There are scholars believe that the "dangerous, dangerous crime that regards dangerous act of the crime as a result of the necessary conditions for the crime" in the event that the dangerous crime accomplished.
The above three viewpoints are different from each other in the indication, but have a common characteristic, namely that dangerous crime accomplished, attempted to whether the occurrence of risk as the standard, dangerous state constitutes a dangerous crime accomplished, in the concept of dangerous criminals are considered to define crime danger crime. However, in general, the continental law system country criminal law theory is the theory consists of three classes of crime, namely crime consists of the constituent elements of a compliance, accountability, and three-dimensional combination of illegality, but that our country crime is by the coupling elements of the four aspects of the object of crime, objective aspect of crime, the subject of crime, subjective aspect of crime and, in our country criminal theory system and the mainland legal system country criminal theory system has the obvious difference. The decision system by the civil law countries crime, criminal law scholars in continental law system countries that the provisions of the criminal law is accomplished as mode, constitution is crime accomplishment, crime is often the crime accomplished, so that "in the criminal law of continental law countries, there is a crime the establishment of conditions of dangerous, and is the sign of accomplishment.
But in our criminal law, decided by the system of crime in China, our criminal law crime and not crime accomplishment standard according to the criminal code, criminal law only with crime patterns.
Crime does not necessarily go immediately to the accomplishment of a crime, because the crime may also occur after preparatory crime, attempted crime, the discontinuance of crime of three kinds of forms of crime, crime is based on establishment of a crime to further explore the types of crime. Therefore, the "criminal law to crime pattern" is no legal basis and the view is doubtful, according to the concept of the view definition of dangerous criminals and then taking this concept as a guide, will lead to the theory can not solve the problem.
A dangerous criminal) conditions or judge the signs in the accomplishment of a crime is convicted, will cause embarrassment. As some scholars believe, if only in a dangerous state is identified as the standard of accomplishment, then subsequently appeared in actual harm results will be interpreted? To the destruction of transportation stipulated in Chinese criminal law article 116th the crime as an example, the act of explosives placed on the railway, and detonated a short rail long time caused by the railway transportation is interrupted, in accordance with the "crime theory" dangerous point of view as long as the behavior of explosives placed on the track when it has dangerous state, thus the behavior has constituted the crime, therefore should be "three to ten years in prison.
However, since the placement of explosives have damaged vehicle crime, the behavior person then detonated the explosives act how to evaluate human behavior caused by explosive, rail transport long-term interruption while still identified as "enough to train overturn, destroyed the danger, no serious consequences" because only by railway transportation long interruptions, but did not make the train really overturn, it still can not be identified as specified in article 119th of the criminal law "serious consequences" of the situation, but only that it still belongs to the article 116th of the criminal law. Fan Fanchou. However, the placement of explosives and explosives placed and detonated the behavior with evaluation of treatment, there will be danger and harmful results have the same value phenomenon, [13] with a crime and has two kinds of existing standards, does not meet the requirements of criminal justice. Moreover, the two have different degree of harm behavior is equal treatment, also do not accord with the criminal law principle of balance between crime and punishment.
Two) the dangerous state as the accomplished mark, is not conducive to encourage criminal desistance of crime. According to China's criminal law theory says, discontinuation of a crime may not happen in Journal of Hunan Public Security College in 2010 April in the accomplishment of a crime after. As the damaged transport, transport facilities to danger to vehicles overturning, destroyed on the establishment of the crime, so he could no longer stop. But this conclusion may not be suitable. For example, one in order to make the train overturning, destruction, he took a large stone and carry on to the tracks, and then sit on the sidelines. But until the train come immediately after, stone, prevent accident. If you think that as long as the danger is completed, will not to encourage criminal desistance of crime, also do not accord with the criminal purpose of protecting legal interests. People realized this point, put forward the discontinuance of crime can occur in the accomplishment of a crime but must be before the crime results. Such a behavior can be, the suspension of crime. However, the accomplishment of a crime is an outcome of morphology, since it is the ending, it indicates that it could not be changed into other forms of crime. Therefore, the question is not whether the time of discontinuation of crime in the crime as before, but lies in the correct understanding and cognizance of crime.
Objective to define the concept of dangerous crime lies in better judgment can set up the dangerous prisoners in what circumstances, the criterion should be the constitution of a crime. Because the crime question to be answered is, act in accordance with what elements can be established between crime, that crime and non crime, this crime and other crime. Several forms and accomplished crime, attempted crime is intentional crime form may arise in the process, its function is set up on the basis of crime in the crime to further illustrate the behavior is what form, and the form of crime, crime is the premise to act in accordance with.
So perilous crime occurred in the concrete dangerous state is the crime tenable condition dangerous crime, the concept of dangerous crime definition should not consider their specific forms of crime.
To sum up, rules based on our current criminal law and the criminal theory system is actual, dangerous crime of introducing the concept is not, but the introduction of the concept should pay attention to digestion and absorption, fully consider our country's criminal law theory and the specific conditions, can help to deepen our understanding of the theory of crime types, also only to further improve the cognizance of crime criminal law operability. Therefore, in the mainland legal system country criminal law theory of dangerous crime, refers to the behavior harmful behavior by the implementation of the cause with the concrete dangerous state as crimes of crime or crime conditions and crime, dangerous crime in China's criminal law concepts should refer to the behavior harmful behavior by the implementation of the created with the concrete dangerous state as the crimes of crime.