Study On The Construction Of The Legal System Of Joint Negligent Crime In China

Several main faults in crime is one of the most complicated research subject in criminal jurisprudence,this subject is a plural subject to solve the problem of the most important fault of the implementation of the accord with the behavior of the constitutive requirements,the constitutive requirements in the sense of the results,if we can not split into multiple singular subject of crime is processed respectively,but as a community,namely the discretion of his joint crime.According to the different answers to this question,the corresponding theories can be roughly divided into "negative theory" and "positive theory" two categories;There are also differences in relevant legislation in various countries in the world,and the existing models can be roughly divided into three categories: "negative model","positive model" and "blank model".Current related theory of "negative theory",thought the plural subject implemented in accordance with the behavior of the constitutive requirements,the constitutive requirements in the sense of the results,only by common deliberately set up a joint crime,when plural subjects involved in the crime fault because there is no common deliberately,not as a community,on the basis of joint negligence crime is negated.Did not establish the legal system of joint negligence crime in our country,using "no model" in the current criminal law,denial of joint negligence crime,joint negligence crime situation as a separate process,at the same time because of nots allow to ignore to the harm of joint negligence crime,to be deemed criminal,but it has a very clear logic contradiction,that is,if no joint negligence crime,is in the form of individual crime it is often difficult to achieve effective legal sanctions for related cases.With the development of science and technology,such as acceleration,joint negligence crimes in these cases after entering the judicial process,judicial organs under a lot of pressure,in order to separate the rules of crime is difficult to deal with,in a joint crime of rule processing and there in the method,based on the right to life the concept of maximum protection,judicial organs is disposed of in accordance with the rules of the joint crime in essence,but not in words,such cases abound.Not only does the discretion of specific cases without judicial binding force secretly affirm the joint negligent crime,but also the supreme people’s court and supreme people’s procuratorate have published a lot of relevant judicial interpretation and guidance cases that run counter to the general theory and legislative provisions in essence,which is of universality and guidance to the national judicial practice.The change of a certain legal system is the historical norm,but the principle of statutory punishment for crimes is the cornerstone of the legal building,which needs to adhere to the rule of law,rather than some specific legal provisions.In the final analysis,both theory and legislation are for better practice,so it is imperative to build a legal system of joint negligence.To build joint negligence crime legal system in China,must first through shadow of the theory of joint crime is just in a certain historical stages artificially creating legal concept,common crime is not the eternal truth in joint crime theory,integrity is the kernel of joint crime and joint intent as required by the guidelines form a joint crime integrity does not necessarily rejected synthesis for the center with common meaning under the common behavior of joint crime need integrity,lost to the absolute "negation theory","definite theory" has its merit and mining in China "must model" is more appropriate,It is necessary to construct an affirmative model with modesty.Secondly,after the general direction of admitting joint negligent crime is determined,it is necessary to establish the principles to be followed in the legal system construction of joint negligent crime.Modesty principle and the principle of "partial behavior and full responsibility" are indispensable.Modesty principle is conducive to the protection of human rights and requires strict prevention of the expansion of punishment in the two stages of conviction and punishment of joint negligent crime.The principle of "partial conduct and full responsibility" is conducive to the punishment and prevention of crimes,and the handling of joint negligent crimes should be brought into the legal framework.Thirdly,it is necessary to establish the legal system of joint negligent crime.China’s current criminal law is divided into two parts:general provisions and specific provisions.In view of the general parts,can be used in the legislation "provision to streamline and appropriate space",in order to streamline the legal provisions of joint negligence crime legal system make the basic rules and then further interpretation by the theory of the basic regulation,the focus of the theory of interpretation is established by the joint negligence crime conditions,contains the main body of diversification,common meaning,the result of the common behavior and common,the cause of the dominant force of five elements,and the five elements must have at the same time,be short of one cannot;In addition to the basic provisions,the general provisions of the criminal law does not involve the other contents of the joint negligence crime,by the theory in accordance with the premise of legislative intent to be supplemented,leaving the system flexible space for development.For the specific part,under the premise of maintaining the stability of the specific provisions of the criminal law,the judicial interpretation can be tolerated to guide the legal practice of some specific charges involving joint negligence.The construction of the legal system of joint negligent crime in China will not impact on the protection of human rights,because the system has the effect of "triple protection" for joint negligent crime.The second protection is that when the plural subject carries out the common negligence under the common meaning and infringes the legal interests of the protection of criminal law,not all the subjects are treated as crimes,and only the subjects that play an important role constitute the joint negligent crime.This important role refers to the dominant causal force.The third protection is to classify the subject of the joint negligence crime after the establishment of the joint negligence crime,distinguish the severity of the case,give a lighter punishment to the subject with a lighter case,and further treat the joint negligence crime with a lighter punishment.The "triple protection efficacy," the first and the second protection is to protect the conviction stage and the third heavy protection is the protection of the sentencing stage,through this mechanism can effectively prevent improper punishment expansion,the construction of legal system of joint negligence crime is neither lag and not to be too futuristic,to better adapt to the current social needs.