Research On Negligent Potential Damage Offense Under Background Of Risk Society

The criminal negligence has experienced the change from the ex-wife’s kid to the most favourite kid in the science of criminal law.In the theory of criminal law and criminal legislation,the intentional crime has criminal intent,and the criminal act is easily categorized.Thus it is almost indisputable that the potential damage offense exists in the intentional crime.Different from that,the criminal negligence seems not to have the direct criminal intent.There is no will of expecting or indulging the occurrence of harmful consequence in the actor’s subjective.It is usually required to trace back the criminal act according to the criminal consequence,and the occurrence of harmful consequence is the necessary condition of identifying the criminal negligence.The harmful consequence essentially includes the actual harmful result and dangerous result.In case of occurring the actual harmful result,the result of dangerous condition caused by the act can also be blamed on the negligent actor.The laws are operated in the society,and the society is also the subject regulated by laws.Based on the concept of risk society,the starting point for intervention of criminal law is progressively preposed,trying to regulate those unbearable risks of society prior to realizing the risks.Under such background,the negligent potential damage offense emerges accordingly.The legal interest protection mode centralized by consequential offense or infringing offense is difficult to adapt to the development basic situation of terrorism crime etc.The criminal legislation should bring the time point of criminal punishment forward to the abstract potential damage or preproduction phase before the infringement of legal interest or implementing the accomplished offense so as to regulate when the behavior only reflects the specific danger for the the infringement of legal interest.Nowadays the preposition of legal interest protection of criminal law is more obvious,which is not limited to the above-mentioned criminal type with a particularly evident harmful consequence e.g.terrorism crime etc.but progressively including some criminal negligence existed in the high-risk fields.For instance,during the transmission of infectious disease,the accident of violating the administration order of infectious disease appears frequently,which causes a severe threat to the life and physical safety of medical personnel and public people.However,most criminal negligence in the criminal law of our country can only constitute a crime until the actual occurrence of significant damage.In case of such circumstance,in order to reduce the frequent appearance of significant damage,the legislation authority needs to prepose the protection to legal interest needs to be protected.It may constitute the behavior of violating regulations on prevention and control of infectious diseases that may cause the risk of transmission of infectious diseases as a crime so as to blame the result of dangerous situation caused by the dangerous behavior on the negligent actor.Such crime is known as the negligent potential damage offense.The setup of negligent potential damage offense can play a certain warning effect to preventing the major security risk but expanding the range of punishment for criminal law.Therefore,the author performs a certain reflection to the so-called risk society theory,and conducts a comprehensive analysis to the negligent potential damage offense emerged under such background so as to reach the purposes of both accurately identifying and judging this new thing of negligent potential damage offense while preventing the expansion of its crime circle.It is also expected to provide some benefits for the legal authority to accurate apply the relevant accusation in practice and for the legislation authority to properly establish the negligent potential damage offense when legislating.This paper is composed of two parts including the introduction and text.The text can also be divided into the following five parts based on its internal layout.Chapter 1 “Reason and Result: Risk Society and Negligent Potential Damage Offense”.It mainly introduces the relation between risk society and negligent potential damage offense.The risks in risk society reserve a space for the redistribution of political power.People silently acquiesce the existence of one political explosive in order to avoid the superficial risk,and this ideology will eventually erode people’s original rights just like the boomerang.The raising of risk society theory is essentially to resolve such problem,make people mitigate the risk of generating another totalitarianism in the course of resolving the primary natural risk.However,due to the misreading to risk society theory by the academic circle,this theory has been taken as the foundation of making positive response of criminal law to the increasingly frequent occurrence of safety production accident domestically and internationally.The criminal legislation is also gradually transformed from the system of punishment and condemnation of originally focusing after the occurrence of actual infringing result to one set of danger control system preferring to reducing the risk for preventing crime.Under such background,the risk criminal law take the danger and responsible judgement as the substantial foundation,which oversteps the negativity of traditional criminal law and moves the barrier of criminal punishment to the danger phase when the legal interest may be infringed so as to reinforce the regulatory awareness of public people and realize the national special targets.And then such new tool of negligent potential damage offense will be emerged along with it.The negligent potential damage offense serves the governance of criminal law to danger,which is also the product of political will of legislator nipping the danger in bud.Chapter 2 “Extraterritorial Inspection: Research on Comparison of Negligent Potential Damage Offense”.The discussion of academic circle domestically on the negligent potential damage offense has been influenced by the theory of criminal law from Germany and Japan.As the most representative countries of the statute law of civil law system,the criminal code of Germany and Japan has also regulated many negligent potential damage offenses.However,due to there is no clear paraphrase to the concept of negligence in the criminal code of Germany and Japan,which on the contrary leaves an unlimited space for the discussion of negligent potential damage offense.In the judicial precedent of UK and USA,there are also many detailed interpretations to the negligent potential damage offense.The evolution and development of UK’s criminal law has the characteristics different from the criminal law of civil law system.In terms of the identification method of negligent potential damage offense,UK’s criminal law also has its own unique characteristics.In case of judging whether the actor constitutes relevant crime,it has introduced one concept of rational man and make it as the reference.That is,if it is completely able to predict the danger caused by behavior under some condition as one rational man,but the actor fails to predict such danger under the same circumstance and apply the dangerous behavior and bring the dangerous result,which can constitute the negligent potential damage offense.However,the subjective aspects of each crime regulated in the criminal law of USA are all unique and specific.Thus the research on criminal intent by the criminal law theory circle in USA basically focused on the scope of this accusation.That is,it is required to judge the subjective aspects of one specific crime from the specific legal regulations.It is also required to cut in from the specific case when judging the negligent potential damage offense.Chapter 3 “Clear Constitution: Constitutive Elements of Negligent Potential Damage Offense”.The only purpose of constitutive elements is to illustrate the specific connotation of dangerous behavior forbidden by criminal law or due behavior of order so as to clearly distinguish the crime and non-crime.The crime of any type all includes the subjective element and objective element,and the negligent potential damage offense is also no exception.It requires the actor to implement certain behavior intentionally or negligently.This behavior is the action with categorization feature implemented by actor for realizing the other purposes except the dangerous result,and the actor has to hold a negative attitude to the dangerous result that severely threats the life,property security of public people caused by the behavior.Through the comprehensive and detailed analysis to the constitutive elements of crime for the negligent potential damage offense,as well as categorizing,legalising and conceptualizing some specific accusations,it is able to master the constitutive elements of negligent potential damage offense as a whole.Chapter 4 “Accusation Analysis: Legislation Example Analysis of Negligent Potential Damage Offense”.There is significant dispute on the negligent potential damage offense in the criminal law circle of our country.This dispute is certainly closely relating to the issue that whether the criminal law of our country regulates the potential damage offense of criminal negligence.Upon the criminal law of our country was amended in 1997,the focus perspective to negligent potential damage offense started to transform from legislation theory to interpretation theory,that is,the discussion on specific accusation in the criminal law of our country.In this chapter,it selects four negligent potential damage offenses that frequently appear in the juridical practice as the cutting point including the crime of impairing infectious disease prevention,crime of dangerous driving,crime of dangerous operation,and crime of high-rise littering,and conducts the discussion on the legislation example of negligent potential damage offense.The criminal pattern of subjective aspects for the crime of impairing infectious disease prevention depends on actor’s cognition to “causing transmission of category A infectious disease or having the severe danger of transmission”,and the attitude to be hold for this result;The setup for crime of dangerous driving continues the legislation mode of traffic accident crime,including the circumstance that the actor’s intentional or negligent violation of traffic and transportation administration law but not causing the actual harmful result,and the negligence brings the actual and urgent danger to the safety of public road;Under the binary punishment system,the application for crime of dangerous operation should be based on the independent and substantial judgment of criminal law,certify the crime of dangerous operation as the negligent potential damage offense,limit the identification and accusation scope of dangerous status through the result properties;The one accusation for crime of high-rise littering distributes the constitutive elements for two accusations,that is,including both the potential damage offense and actual damage offense.It is able to certify the subjective fault for crime of high-rising littering is negligence from its setup of statutory sentence,history of accusation setup and case condition in judicial practice.Chapter 5 “Crime Governance: Governance of Negligent Potential Damage Offense Under Background of Criminal Structure Variation”.In recent years,although there are few accusations covered by the negligent potential damage offence,the number of cases occupies more than a half of criminal and judicial practice in our country.It is necessary to categorize the negligent potential damage offence,establish the hierarchical system of negligent potential damage offence in which the criminal law is used for regulating the nature of negligent potential damage offence so as to make a new definition to the criminal punishment.Upon confirming the separation system of negligent potential damage offence,it is required to determine the corresponding criminal punishment tier,reduce the enforcement rate of imprisonment penalty,and clarify the details of crime so as to balance the relationship between legislative expansion and protecting the civil rights.Meanwhile,it is required to establish the system of eliminating crime record for the negligent potential damage offence,eliminate the discrimination to criminals of completing reformation,enable millions of misguiding people to return to the society so as to maintain the harmony and stability of society.