Author(s)

Qilu Zhang ¹

Affiliation(s)

¹ North Minzu University, Yinchuan, Ningxia, 750030, China

Corresponding Author

Qilu Zhang

ABSTRACT

The provision of the Criminal Law Amendment (XI) which makes throwing objects from a height an independent offence has value theory justification and has been praised as a "vivid lesson on the rule of law", but the direction of the legal benefit of this offence is vague and there are many disputes in the doctrine. Based on this, this paper examines the changes in the theory of legal interests in the risk society, and acknowledges that in order to effectively deal with the post-industrial risk criminal law system from punishment to prevention, it is necessary to recognise the spiritualisation of legal interests and to seek the corresponding limitations. By integrating the current development of spiritualised legal interests in China and the pros and cons of various doctrines, it is determined that the protection of legal interests of the crime of throwing objects from a height is the order of public administration rather than public safety or people's sense of security, and that a clue-based explanation of "significant circumstances" should be provided and the binary punishment mechanism should be perfected, so as to put forward counter-measures and suggestions in terms of legal countermeasures.

KEYWORDS

The offence of throwing objects from a height; spiritualisation of legal interests; risk society; public administration order

CITE THIS PAPER

Qilu Zhang. Exploration of the Legal Benefits of the Offence of Throwing Objects from the Perspective of Spiritualisation of Legal Benefits. Science of Law Journal (2024) Vol. 3: 29-36. DOI: http://dx.doi.org/DOI: 10.23977/law.2024.030605.

REFERENCES

[1] Article 291 bis of the Revised Criminal Law (XI): "Throwing objects from buildings or other heights under serious circumstances is punishable by fixed-term imprisonment of not more than one year, control or detention, and a fine or a single fine."
[2] See Jiang Tao, "Criminal Law Doctrinal Analysis of the Crime of Throwing Objects from a Height," Jiangsu Social Science, No. 5, 2021.
[3] See Bai Jianjun, Legal Positivism Research Methods, Peking University Press, 2008 edition, p. 1.
[4] See Richard Chang, "Rethinking Some Issues in the Risk Society," Law and Business Studies, No. 5, 2011.
[5] See Liu Yanhong, "China should stop criminalisation of criminal legislation", Jurisprudence, No. 11, 2011.
[6] See Zhou Guangquan, "Ideas and Methods of Criminal Law Legislation in the Transitional Period," Chinese Social Sciences, No. 3, 2016.
[7] Cited in Lao Dongyan, Criminal Law in a Risk Society, Peking University Press, 2015 edition, p. 37.
[8] See Feng Wenjie, "The Chinese Shaping of Abstraction and Spiritualisation of Legal Interests", Journal of Beijing Institute of Technology (Social Science Edition), 2020.Vol. 22, No. 4.
[9] See Li Chuan, "The Expansion of Dangerous Offences and Justification Reflections," Law Review (Bimonthly), No. 3, 2017.
[10] See [English] Hirsch, The Concept of Legal Benefit and the "Principle of Damage", Peking University Press, 2009 edition, p. 197.
[11] See Richard Chang, "Legal Interest Protection and the Principle of Proportionality," China Social Science, No. 7, 2017.
[12] See Klaus Roksing, "Isn't the Task of Criminal Law to Protect Legal Interests? Criminal Law Review,2018. Volume 39, Issue 2, p. 152.
[13] See Chen Xingliang, "Transmutation of Legislative Ideas on Public Security Offences: Taking the Criminal Law Amendment (XI) as a Perspective." Jurisprudence 2021, no. 1.
[14] See Zhao Xiangru, "On the Criminal and Penal Normative Construction of the Offence of Throwing Objects from a Height - Taking the Amendment (XI) to the Criminal Law (Draft) as the Background", Rule of Law Research, No. 6, 2020.
[15] See Chen Xingliang, "The Influence of Civil Law on Criminal Law and Criminal Law's Response to Civil Law", Law and Business Studies, 2021.
[16] See Zhou Guangquan, "Progress of Criminal Legislation and Judicial Prospects - General Commentary on the Criminal Law Amendment (XI)", Jurisprudence, No. 1, 2021.
[17] See Rousseau, The Social Contract, The Commercial Press, 1963, p. 63.
[18] Article 1254 of the Civil Code states: "In the event of the circumstances set forth in the first paragraph of this article, the public security authorities shall, in accordance with the law, promptly conduct an investigation to identify those responsible."
[19] See Zhou Guangquan, "On the Reinterpretation of the Positive Criminal Law Legislation Concept of Achieving Proper Punishment through the Creation of Misdemeanours", Comparative Law Studies, No. 1, 2020.
[20] See Zhang Mingkai, "The Principle of Creating New Offences and the Revision of Amendment 11 to the Criminal Law (Draft)", Politics and Law Series, No. 3, 2020.

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