Research On The Crime Of Negligence In Water Traffic

With the need of economic and trade exchanges in China,the number of water transportation business is increasing.The casualties,property losses and water pollution caused by frequent water traffic accidents should not be underestimated.Among them,the negligent behavior of water transport practitioners and shipping managers have become an important factor restricting the public safety of water transport.However,at present,few scholars pay attention to the crime in the field of water transportation,especially the negligent crime in the field of water transportation is lack of systematic integration.The theoretical blank leads to the judicial practice can not standardize the identification of water traffic negligence crime and investigate the criminal responsibility of the relevant responsible personnel.The realization of the strategic goal of building a powerful maritime country needs to strengthen the realization of the function of marine criminal rule of law.On the basis of fully investigating the legislative and judicial present situation of negligent crime of water traffic in our country,this paper devotes itself to a comprehensive analysis and systematic discussion of the basic theoretical issues of negligent crime of water traffic,expecting to provide suggestions for setting reasonable standards of crime and punishment in China’s criminal legislation,provide a solid theoretical basis and judicial path selection for the determination of water traffic negligence crime in judicial practice,so as to contribute to the improvement of the theoretical system of water traffic negligence crime in today’s context.This paper mainly focuses on the constituent elements of water traffic negligence crime.In the introduction part,the background and significance of this paper are introduced.On the basis of clarifying the current situation of the research on water traffic negligent crime in China,the research methods used in this paper and the research value of this paper are discussed.In addition to the introduction,the paper is divided into eight chapters,as follows:The first chapter is about the basic theory of negligent crime of water traffic.Combining with the definition of traffic negligence crime by Chinese and foreign scholars,this chapter defines the crime of water traffic negligence in a narrow sense and clarifies its classification basis in the Criminal Code.After further understanding the typical characteristics of negligent crime of water traffic,the types and existing scope of negligent crime of water traffic are clarified by the form of the objective behavior,the scope of.the subject,the causes and the contents of the negligent crime,so as to facilitate the following research and discussion.In addition,this chapter also points out the necessity of criminal law intervening in the crime of negligence of water traffic and the factors that need to be considered in view of the misunderstanding of traditional shipping exemption thinking.The second chapter discusses the definition of perpetrating act of negligence crime in water transportation.Firstly,it elaborates on perpetrating act of the negligent crime of water traffic from the formal.and substantive elements,and distinguishes the different types of perpetrating act manifestations of the negligent crime of water traffic.For the typical stage negligence of water transportation,the identification of the implementation behavior should be based on the stage of negligence.The three chapter clarifies the identification and standard of the harmful result in the crime of negligence of maritime traffic.On the basis of the analysis of the rationality of the standard setting of personal casualties and property losses according to the current applicable legal norms,this paper puts forward the judicial application path for the special result form of the crime of negligence in water traffic,that is,the disappearance of persons falling into water and the pollution of oil spill from ships.The fourth chapter focuses on the judgment path of causality in negligent crime of water traffic.The causality in the negligent crime of water traffic in China is characterized by many factors and one result,the process of causality affected by intervention factors,and the complexity of causality itself.Based on the understanding of the traditional theory of causality in criminal law,This paper points out that the judgment of causality of the water traffic negligence crime in China should be divided into two stages:fact attribution and result attribution,and the judgment task of causality should be completed by applying the theory of conditional causality and the theory of objective imputation respectively.The fifth chapter focuses on the subject scope of different types of fault and the limitation of liability subject under special circumstances.On the basis of summing up the scope of the subject of water transportation in different types of fault,The article points out that it is necessary to make clear the subjects of criminal responsibility which are easy to be ignored in judicial practice,such as sailors on duty and pilots,and the main body level with supervision responsibility within the ship organization system shall be limited by the reverse principle.In addition,the article makes clear the main body of responsibility in the common management situation and management dislocation situation.The sixth chapter discusses the duty of care in the subjective characteristics of water traffic negligent crime.This paper analyzes the duty of care of the subject of water traffic fault from three aspects:content,basis and performance.In addition,the application of trust principle in different fault types of water transportation is discussed.On the basis of affirming the application of the principle of trust in the field of water transportation and ship organization system,this paper further puts forward the applicable restrictions of the principle of trust,and points out that the primary basis for the application of the principle of trust in the field of water transportation is the waters with ship routing system.In addition,based on the needs of protecting the legal interest of public safety of water transportation and the guidance of strict management obligations of shipping managers,The paper proposes that the application of the principle of trust should be denied in the case of the failure of the shipping managers to establish the safety management system.The seventh chapter is about the judgment of the attention ability of the subjective characteristics of the water traffic negligent crime.It first reveals the factors that affect the ability of attention of the subject of water traffic fault liability,and then puts forward that when choosing the criteria of the ability of care,it is necessary to fully investigate the environmental conditions of specific water traffic business behaviors.On this basis,the subjective theory based on the actual actor’s attention ability is adopted as the judgment standard of attention ability.Accordingly,the judgment standard for the attention ability of shipping managers should be based on the attention ability of general shipping management subjects,so as to strictly fulfill their safety management obligations.The eighth chapter is the suggestions for the improvement of the water traffic negligence crime.In view of the existing problems in the field of water transportation,this paper puts forward some suggestions from the aspects of legislation and judicial application.From the legislative level,it is proposed that we should add independent charges and improve the criminal norms in non criminal legal norms;from the judicial level,we should take declaration of death as the path choice to deal with people falling into the water and missing caused by water traffic accidents,take the tonnage of oil spill as the standard to measure the infringement of environmental legal interests in the oil spill pollution caused.by water traffic accidents,and at the same time,we should improve the incriminate standard of casualties,change the identification mode of property loss.In addition,in the judicial level,it is proposed that the purpose of protection should be "the performance of rescue obligations" for the identification of the escape of the water traffic accident and the subjective knowledge of the subject of water traffic responsibility should be paid attention to.