The Objective Attributable To Negligence Under The Theory Of Vision Implementation Of Behavioral Research

The objective imputation theory is a hot frontier problem which has been most frequently discussed by the criminal law circles in Germany and even in Europe since the 1970s. There has been at least one point recognized by many learned scholars: It has positive significance to the causal relation theory and the negligent crime theory. However, the theory research level of the negligent crime theory is very low and it provides little guidance to the law practice. One important reason is that criminal behavior with negligence has not gained a due status in the negligent crime theory in China. Therefore, this paper conducts research on the criminal behavior with negligence from the perspective of causal relation theory.This paper is divided into three parts.The first part presents the overview of objective imputation theory. Born in Germany, this theory develops because the causal relation theory can not provide adequate reasoning for the ascription of the criminal liabilities in many cases.In the past decades, there have been a great number of dissertations and papers about the objective imputation theory, among which Professor Claus Roxin had constructed a relative complete system of the theory. In his view, a further examination of other causes preventing objective imputation shall be conducted after the determination of the causal relation to specify whether the behavior of the doer meets the objective constitutive requirements and can be conducted under objective imputation.Based on Roxin's system of the theory, this paper deems that: l)The objective imputation theory has provided substantial explanations to criminal behaviors and laid a foundation of imputation.2) Although the objective imputation theory has taken the place of the causal relation theory and become the general accepted theory in the criminal circle in Germany, it may not be suitable in China, especially to the intentional offender.3) We'd better follow the way from existence to standard, from facts judgment to standard evaluation judgment to ensure the precision of the criminal imputation to the largest extent.Part two outlines a general summary of the research on criminal behavior with negligence in Germany and Japan. Based on the history of criminal behavior with negligence, the traditional theory defines it as a violation of attention obligation (theory of violating attention obligation), while Roxin defines it as risks created but not allowed by law (theory of creating risks not allowed by law).The traditional theory has the following three shortcomings. 1) The violation of attention obligation does not necessarily result in the imputation of the criminal negligence.2) It is easily confused with negligent offence and omission.3) "Attention obligation" has been given too many meanings in criminal law and is easy to cause confusion in understanding.The "theory of creating risks not allowed by law" defines the criminal behavior with negligence in essence and avoids the confusion with negligent offence and omission. What's more, this theory with detailed rules overcomes the shortcomings of the traditional theories, which were not able to provide reasonable explanations and correct judgments in terms of certain cases.The third part provides a construction proposal of the criminal behavior with negligence in China. There is little discussion about this topic except some introduction of the criminal law theories in German and Japan. The criminal circle holds a similar theory with that in the two countries mentioned concerning the research on the attention obligation.Generally, the three shortcomings (especially the first one) in the traditional criminal theories in Germany and Japan still exist in the negligent offence theory in China. Besides, there are some special problems: 1) there is no clear differentiation between "harmful consequences actually occurred" and "consequence of constitutive requirements".2) Objective behavior has no clear place in the determination of negligent offence and there is no specific rules in the Criminal Law of the PRC. 3) Most of the scholars just discuss the problem of negligence offence in the negligence of crime.This paper considers that the criminal behavior with negligence has its value of existence from the perspectives of both legal practice and theories. It gives out the following reasons: 1) the criminal behavior with negligence has the function of reasonably determining the scope of the negligence of offence.2) only with the recognition of the independent status of the criminal behavior with negligence can the proper explanation of dangerous negligent offence become possible.3) the criminal behavior with negligence can be specified. The author tries to make basic rules for the specific determination of the criminal behavior with negligence and the consequence of constitutive requirements of negligence offence based on the "theory of risks nut allowed".