抽象危险犯的概念及正当性基础

The Concept and Legitimacy of Offence?of Abstract?Potential?Damage

从形式上,抽象危险犯既可表现为行为犯,也可为结果犯。抽象危险是一种拟制的危险,一般不需要进行具体的危险判断。抽象危险犯的构成要件设置是一种保护法益前置的措施,在风险社会下,具有合理性。但是,抽象危险犯的处罚与罪责原则间存在紧张关系,有必要限缩处罚范围。

Formally, offence of abstract potential damage can not only be considered as behavioral offence, but also consequential offence. As a constructive damage, abstract potential damage commonly does not need concrete damage judgment. The special constitutive element of abstract potential damage is a prepositive measure for protecting legal interests. It has rationality in risk society. However, there is a tensional connection between the punishment of offence of abstract potential damage and the principle of suiting punishment to crime. It is essential to limit the punishment range.