| Strict liability is created first in the civil domain in order to pursuethe liability of a tort which lacks of fault or whose fault can hardly beproved. From the 19th, strict liability is introduced into criminal domainin common law because of great difficulty in proving one's mens res andlegitimate objective in favor of public interests. Having been improvedgradually in the past over 100 years, the theory of strict liability hasturned to be a distinctive feature of common law in criminal domain, and hastaken an important role as a deterrent to crime and a defense against publicoffences. Chinese scholars have begun to introduce strict liability since theearlier 1980s, but the further study on it hasn't been attached until recentyears. The original theory of strict liability has bred two differentacademic opinions; one is relative strict liability, and the other isabsolute liability. Now that the theory of the elements of crime in Chinesecriminal law is quite different from that in common law , most of our scholarstakes it for granted that strict liability is equal to absolute liability 1or non-fault liability. To this case, the present thesis based on foregonestudies and referenced by strict liability in common law contrives to discussthe theory of relative strict liability prevailing in English criminal lawand its significance to Chinese criminal law. Besides the preface, this thesis divided into four parts: the conceptof strict liability ,strict liability in common law, the rationality ofstrict liability and strict liability in Chinese criminal law. The thesiscovers about 40,000 words, among which 9,000 words belongs to footnotes. Part one :By comparison between strict liability in civil law and incriminal law, between the earlier absolute liability and the relative strictliability; and by analysis on each characteristics or the elements crimefeatured respectively in common law and Chinese legal system, and byintroduction of two cases concerning the application of strict liability,the thesis will expound the formation and development of strict liability,clear the concept of strict liability in Chinese criminal law , and thenpoint out that strict liability in essential is a guilty liability . Part two: This part begins with an introduction of criterion under whichstrict liability shall be applied, and an introduction defenses to strictliability. Then, it furthers to present that the strict liability isdifferent from absolute liability. Part three: The rationality will be demonstrated in historical andtheoretical respects. The developing process of criminal liability is ahistorical choice and will be determined by the periods. The same is trueof the changing cause of the theory of strict liability, which has beenimproved from the absolute liability to the relative strict liability. 2Part four :According to the relative strict liability, this part willstate the strict liability crimes in our legislative and jurisdict practice.Thus ,as to the introduce of strict liability of our criminal, the authorthinks that it seems to be probable for it will not be regarded as apresumption of mens rea, while it turns to be unavoidable for it will satisfythe social requirement. |
