Study On Negligent Crime

After recognizing the common defects of negligent crime by comparing the development of the negligent crime theory in Chinese and foreign criminal law study,this dissertation,from the nature of negligent crime and relative to the objective imputation theory proposed by Professor Roxin,builds a theoretical system for risk control of negligent crime to control behavior,remove dangers and protect legal interests.This dissertation consists of seven chapters,chapter one and chapter two is the foundation of research and writing of this dissertation;from chapter three to chapter seven,this dissertation expounds the theoretical system for risk control of negligent crime.Chapter one presents the general development of negligent crime and theory defects thereof.Theories of negligent crime in ancient China are comprehensive and advanced.It is recorded in the chapter “Canon of Shun” of the Book of Documents(Shang Shu)that “any person who causes injury owing to negligence or force majeure could be remitted a punishment and that any person who kills someone intentionally or without repentance shall bear a severe punishment”,which specified the commutation of negligent crime and force majeure.In Western Zhou Dynasty,the procedure of “three hearings(San Ci)” gave mitigated punishment to those who committed crimes out of ignorance,negligence and forgetfulness.Dong Zhongshu in Han Dynasty investigated the criminal motives in trying a case.The Explanation on Law(Lv Jie)written by Zhang Fei was the source of the theory of intention and negligence in modern crinimal law.Law of Tang Dynasty(Tang Lv)is one of the three best-known codes in the world’s legal history.Shen Jiaben,an erudite and informed jurist in modern times,stipulated joint negligent crime in The New Criminal Code of the Qing Dynasty.After the Xinhai Revolution,negligent crime was prescribed in the Criminal Code of the Republic of China promulgated in 1935.Joint negligent crime was not admitted in “The Criminal Law of the Republic of China” in Taiwan amended in 2008.The criminal law of People’s Republic of China,promulgated in 1979 and revised in 1997,has been substantially influenced by that of the Soviet Union,thus the existing Criminal Law of the People’s Republic of China stipulates 62 negligent crimes without admitting joint negligent crime.European countries thrived on extraterritorial modern industrial revolution.The German Constitutio Criminalis Carolina formulated in1532,had provisions on negligent crime;under the deep influence of the Prussian Penal Code and the French Penal Code,the Criminal Law of German adopted in 1871 had not provided for negligent crime until its being amended of 1919.From Feuerbach’s old theory of negligence in1801 to Welzel’s objective-act theory(the new theory of negligence1945-1965),and then Roxin’s objective imputation theory,theoretical researches on negligent crime had gone through two centuries.Learning from ancient Chinese criminal laws since the seventh century,Japan leaped from jus gentilicium era into statutes and decrees era,and then feudal law era,Ever since the Meiji Restoration in 1868,Japan switched to European laws,initially following French law to promulgate “the Old Penal Code” in1880 and then German law to promulgate “the New Penal Code” in 1907 which had negligent crime in its specific provisions.Before World War II,Japan was in the era of “the criminal law for public security”,a dark age for criminal laws.After World War II,Some German criminal opinions were relearned,including the old theory of negligence(still supported by scholars such as Takehiko Sone,Takaaki Matsumiya and Atsushi Yamaguchi),the new theory of negligence(supported by scholars such as Masaji Inoue,Taira Hukuda and Hitoshi (?)tsuka),and the new-new theory of negligence(raised by Hideo Fujiki and Hirushi Itakura)and the affirmation of the joint negligence principle offender by Hideo Fujiki.After summarizing the negligent crime theories at home and abroad,two questions could be concluded.Firstly,relatively less developed countries could advance its development through advanced criminal laws.Secondly,the thinking pattern of intentional crime is inadequate in dealing with negligent crime,which is a common limitation in the criminal systems worldwide,as punishment afterwards is applicable in prevention of intentional crime.Chapter two presents the research orientation of negligent crime,mainly analyzing the transform tendency of criminal law study,as well as the relation between risk criminal law and negligent crime.Influenced by Benthamism,the mission of criminal law is to safeguard legal interest,such as the security of individuals,society and the State.The major influence of risk criminal law to negligent crime study is to protect legal interest in advance.The research orientation of negligent crim study is for the purpose of protecting public interests of most people,and fulfiling the function of criminal law to normalize behavior,remove dangers and protect legal interests.Chapter three discusses theoretical system of the risk control over negligent crime.The foundation for theoretical system of the risk control over negligent crime is the principle of legality,and its value is to balance security and freedom,while its feature is to control organizational acts and personal acts on different stages of the development of risk,so as to eliminate danger and protect legal interest.Based on the concepts,source and nature of the risk,as well as the concepts including the controllable risks,social act,proper social act,wrongful social acts,intentional criminality and negligent criminality,this dissertation summarizes that negligent crime is a kind of crime that controllable risks are not found and eliminated and endanger legal interests due to negligence or overconfidence in the proper social acts.Chapter four focuses on perpetrating act of negligent crime.In negligent crime,perpetrating act is a constitutive requirement.Opposition to perpetrating act of negligent crimes widely recognized by experts and scholars,on the basis of which,the risk theory is employed to analyze the nature of perpetrating act of negligent crimes.Furthermore,several verifications are located in the concept of perpetrating act of negligent crimes and four kinds of perpetrating acts including intentional contributions to the danger of others,serious irresponsibility,negligent decision and nonfeasance,with the further analysis on the controllability of danger by perpetrating act.More information on punishment for negligent accomplished crime could be found in the provisions on 62 negligent crimes in the Criminal Law of the People’s Republic of China.Chapter five discusses joint principal of negligent crimes.It analyzes the research significance of joint principal of negligent crimes.Based on both positive and negative comments of the extraterritorial legislation,doctrine and jurisprudence,argument in this dissertation affirms the opinion on joint principal of negligent crimes.The theory of joint principal offender of negligent crime is argued and proved by the risk control theory,and is integrated with the highlight of other theories.Accordingly,the argument covers the discussion on joint principal offender of negligent crime including concept,theoretical basis,foundation condition,and especially the relative explicit argument on perpetrating acts;the distinction of the functional commonality of acts from the commonality of behavioral risk in circumstances of the existence of commonality of perpetrating acts;the supervision of negligent crime and the management of negligent crime from the perspective of risk control;and the difference between joint principal offender of negligent crime and supervision of negligent crime.Chaper six deals with negligent potential damage offense.The necessity of establishing the negligent potential damage offense is to realize early protection of grave legal interests and the early control over the grave source of danger.The nature of negligent potential damage offense should be the statutory accomplished offense,namely,the original abortive offense of consequential offense of negligent crime,which is established as accomplished offense by criminal law to protect the grave legal interests and control the grave source of danger and standardized in advance to prevent harmful consequences.The punishment of negligent potential damage offense in environmental crimes,consistent with the policies of the state and Party,is helpful in restraining the serious trend in illegal and criminal acts resulting in environmental pollution.In accordance with the characteristics of negligent potential damage offense in environmental crimes,concrete potential damage offense and abstract potential damage offense should be defined,the accumulated offense be punished,and high penalties be imposed on individuals and units that have committed crimes intentionally.Chapter seven discusses the illegality and responsibility of negligent crime.This chapter analyzes the illegality and responsibility of negligent crime,as well as analyzing and discussing reliance principle,force majeure and accident.