Casual Relation Research On Crime Of Dereliction

At present, the domestic criminal law scholars have achieved a general consensus in identifying the causal relation of crime of dereliction. That is, identifying with double causal model of both facts causation and legal causation. There are few objections on the standard conditions of facts causal relation, but a dereliction of duty recognized standards of legal causation is difficult to form a consensus on, which has brought trouble to the judicial practice, resulting in numerous alleged acts of crime difficult to investigate and judge. Starting from the problems in legal causation identifying of dereliction, based on the analysis and comparison of different identifying theories with real cases, I hope to find a more reasonable method to identify the legal causation of dereliction, helping prosecuting criminally negligent behavior, achieving the purpose of setting up the offense. This paper is divided into five parts: The first part raises questions through two cases, and points out that in the judicial practice, there is a big controversy in indentifying causal relation of crime of dereliction due to the lack of standard judgment. Therefore, it is of great significance both in theory and practice to find a reasonable and standard identification.The second part briefly introduces the main theories adapted in identifying the causal relation of dereliction: the theory about positive causal relationship and fortuitous causal relationship, the theory about direct causal relationship and indirect causal relationship, causal disruption theory, adequate causal theory, objective liability fixation theory and negligent supervision theory and so on. All these standards are reasonable with some defects, which can not well solve the identification of causal relationship of dereliction in judicial practice.The third part mainly analyzes the existing mistaken judicial ideas when identifying the casual relationship in the crime of dereliction of duty. The author maintains that neither do the present studies start from the purpose to set the crime of dereliction of duty nor do they explore the legal essence of the casual relationship in the crime of dereliction of duty with an emphasis on the angle of imputation, so it is difficult to draw a convincing conclusion when making discussions on this problem or when making a theoretical transplantation. In addition, the present studies on the crime of dereliction of duty put particular emphasis on satisfying the need of fighting against the crime of dereliction of duty, neglecting the realization of the function of criminal laws to guarantee human rights through the judgment of decriminalization.The fourth part starts from the purpose to set the crime of dereliction of duty, introduces Gustav Husak's control principle into the exploration of the legal essence of the casual relationship in the crime of dereliction of duty, explains the theoretical foundation of causality imputation in the crime of dereliction of duty, and by comparing it with other theories, expounds the rationality to introduce the control principle into the judgment of causal relationship in the crime of dereliction of duty. After distinguishing the factual causation from the law causation, it re-classifies the manifestations of the cause and effect in the crime of dereliction of duty.Based on the analysis in the previous parts, the fifth part proposes some specific methods to identify the causal relationship in the crime of dereliction of duty. In the aspect of incrimination, the scope of official duty for a particular post is used to restrict the scope within which an actor can keep watch and control and an actor's objective resumption conditions and abilities and subjective cognitive competence and prevention awareness are used to judge whether there is a controlled causative potency between an actor and the harmful consequences. In the aspect of decriminalization, from the scope of an actor's official duty, a judgment is made to exclude the possibility to control the harmful consequences; by borrowing ideas from the decent social expectability in the principle of reasonable reliance, make a judgment of the expectablity to punish the actor; it is also suggested that the application of the tolerant rule of criminal law should be paid attention to in the judicial practice.