不同刑法语境下“危险”的涵义

On the Connotations of “Danger” under the Different Criminal Law Contexts

危险概念在我国刑法中应用十分广泛,但内涵有很大的差距。人身危险性在刑法中的意义局限于再犯可能性的判断,对刑罚的裁量起到修正或补充的作用;危险犯中的危险指行为带来危害结果的可能状态,偏重于结果的属性;未遂犯要求客观上具有法益侵害的危险,仅有主观故意缺乏客观危险的不能犯不宜处罚;以危险方法危害公共安全罪的设立以违反罪刑法定原则为代价,要对危险方法严格限制;危险驾驶罪的危险仅是结果产生的一般可能,应与以危险方法危害公共安全罪紧迫的危险严格区分。

The concept of danger is widely applied to China＇s criminal law,but great differences exist in its connotations. The meaning of personal dangerousness in criminal law is limited to the assessment to probability of recommitment,which plays a role in amendments or supplements to sentencing. The danger of perilous crime is the possible condition of harmful consequence caused by the act,which emphasizes the nature of the consequence. Attempted crime is based on the risk that objectively infringes the legal interest,which is unsuitable for punishment only due to the subjective intention but with the unrealized offense. The crime endangering the public security with the dangerous methods is established at the cost of the violation to the principle of legally prescribed punishment and the dangerous methods should be severely restricted. The danger in the crime of dangerous driving is only the common probability causing the consequences,which should be severely differentiated from that of the crime of endangering the public security with the dangerous methods.