Distinction Between Indirect Intention And Overconfident Negligence

Mens rea is one of the most important problem in criminal law theory. Differentkinds of fault forms determine the different degrees of responsibilities,which meetthe requirements of the principle of compatibility of crime responsibility and penalty.The indirect intention and overconfident negligence, as one of the most criticalproblem in fault theory, reflects the different degrees of blame possibility on actors:The degrees of blame possibility on indirect intention is higher than the overconfidentnegligence, the distinction between them will not only affect the conviction but thesentence. Based on this, the commonly accepted viewpoint depends on the cognitionfactor and will factor, while focus on the will factor. However, theoretically self-consistent cannot solve real-life operation predicament.From a practical point of view,it can be divided into two kinds of situations: first, to the most typical case,whichbasis of some real conditions to prevent the happening of the harmful result orobjectively taking certain measures to prevent harmful results, it is feasible to use thetraditional Chinese theory to distinguish the mens rea which is indirect intent oroverconfident negligence; Secondly, it is difficult to distinguish between the indirectintent and overconfident negligence on the person who has no externalizing behaviorcharacterization.The willingness to prevent harmful result is only stay in his mind. Tothis atypical case, the problem of distinction becomes difficult.Although this kind ofcase is atypical and rare, but it is real to be solved.In order to solve the problem of commonly accepted viewpoint which is poor inpracticality, the useless of will factor theory and “compound from theory of the fault”appear in our criminal theory: the useless of will factor theory will attempt to bypassthe problem of will factors,only using cognition factor to distinguish the indirectintent and overconfident negligence, which is simple, logical and has strongoperability; And by reference to "reckless" from the Common Law, some scholarsproposed the compound fault theory which avoid the distinction between indirectintent and overconfident negligence technically.That is also reasonable. However, the abandoned factor of will is the basis of culpability, which is indispensable. In fact, thedifference between the indirect intent and overconfident negligence lies in thecondemned will. And it is not easy to distinguish between indirect intent andoverconfident negligence from the cognition factor.In fact, it just objectify the willfactors. And the compound fault theory referred by the Common Law, which justavoid the distinguish between indirect intent and overconfident negligence technically,is not feasible if our country existing legislation does not change. And there areessential differences between indirect intent and overconfident negligence. Actually,the concept of "reckless" can’t support the“compound from theory of the fault”establishing in our criminal law theory. At this point, the author decide to convertperspective: acknowledging the limitations of human knowledge and vagueness of thesubjective state of mind, for some cases which is not sure to distinguish the subjectivementality between indirect intent and overconfident negligence, if it can not solved insubstantial law, put it in criminal procedural law.It can be solved as a matter ofcriminal judicial proof and using the rules on the criminal procedural law todistinguish the indirect intent and overconfident negligence.To solve the problem of the distinction between indirect intention andoverconfident negligence,we can take this two-level stereo way: first, on the level ofsubstance, adopting the method which matches the existing criminal law requirements:distinguishing the indirect intention and overconfident negligence on cognition factorand will factor; Second, if the level of substance is difficult to solve, we can enter thelevel of procedure, accepting the reality of doubt, according to the principle of "theaccused innocencent until proven guilty”to solve the problem. Not only can guaranteethe form of the current criminal law system in good condition, but also embodies thevalue of respect and guarantee human rights and follow the basic spirit of moderncriminal rule of law.It has the vital practical significance.