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An Advocate of the Traditional Objective Danger Theory

Author: WangJun
Tutor: LinWei
School: China Youth Political College
Course: Criminal Law
Keywords: specific danger theory objective danger theory behavior norm adjudicationnorm
CLC: D914
Type: Master's thesis
Year: 2013
Downloads: 38
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Abstract


Abstract:There is a close relationship among the theories of implementation, danger andimpossibility. If we understand this relationship in a systematic perspective, it will be moreuseful than making a pure logical deduce with the conceptions of Handlungsunwert andErfolgsunwert. In the field of implementation theory, formal objective theory corresponds toabstract danger theory, material objective theory corresponds to objective danger theory. Inorder to solve the problem of implementation, we should make a judgment by materialobjective theory, thus, objective danger theory deserves to be advocated. In the field of dangertheory, objective danger theory should be adopted if we take unaccomplished offense asspecific dangerous crime, otherwise, abstract danger theory should be adopted. Consideringthat unaccomplished offense should not be deemed to be abstract dangerous crime, objectivedanger theory is more appropriate. In conclusion, specific danger theory is a false opinion. It isan abnormal result from subjective and objective unaccomplished theories. For the sake ofcompensating for the deficiencies of the specific theory, a variety of amendments to specificdanger theory try to make some corrections from points of subject and materials of judgment.Unfortunately, those endeavors are failed. There are also many proposals in the interior ofobjective danger theory. Those proposals, which also aim at making an amendment about theobjective danger theory, lead to new problems when they try to correct the defects oftraditional opinion. Thus, the traditional objective danger theory is more feasible. When studyon this problem, Chinese and Japanese criminal theories start from the conflicts betweenHandlungsunwert and Erfolgsunwert, and take behavior norm and adjudication norm asdiagnostic tools. From the perspective of normativism, their methodology causes an artificialopposition between specific danger theory and objective danger theory, thus should be rethinkprofoundly. The justification of punishing unaccomplished offense is that the perpetratorviolate the behavior norm. The function of adjudication norm is to confirm the illegality of theoffense, and to prevent it from happening again. The abstract danger theory, which regardsadjudication norm as justification of punishment, ignores the restriction of principle ofretribution on prevention.

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