Research On The Judicial Identification Of The Implementation Of The Crime Of Death Caused By Negligence In China

The normative effect of criminal law extends to people’s intentional behavior and negligent behavior,which have the same effect of criminal law application.However,due to the particularity of its criminal responsibility and behavior,the application of negligent act in the content of criminal law is not as good as intentional crime.The criminal law focuses on intentional crime.Scholars mainly focus on intentional crime,while the research on negligent crime is not hot.With the development of society,the original theoretical research on negligence can not be satisfied with the actual judicial practice.The number of controversial cases of negligent crime is increasing,which forces criminal law scholars to innovate and develop in the field of negligent crime,and the research on negligent crime is gradually returning to the right track.In the theoretical research of negligent crime,the two criminal law schools of Germany and Japan are the most typical.The old negligent theory,the new negligent theory,the revised old negligent theory and the objective imputation theory created by them are of milestone significance to the research of negligent crime.Due to the influence of Soviet Russian criminal law,China started late in the study of negligent crime and achieved less results.In criminal justice,the handling of some cases lacks certain criminal science,which has caused some disputes recently.The root of the dispute lies in the emphasis on subjectivity over objectivity,the neglect of the importance of the identification of negligent implementation behavior,and the lack of a scientific imputation path of negligent implementation behavior.Putting aside the old theory of negligence,which has been denied by most scholars,the theory of breach of duty of care and objective imputation theory of the new theory of negligence have their unique value in the definition of executive behavior,which has a certain reference significance for our country.In the field of negligent crime,there are certain differences between professional negligent crime and ordinary negligent crime in the definition of implementation behavior.The former has obvious behavior constitution and certain form basis,while the latter has relatively open behavior constitution.This paper focuses on the implementation of the crime of causing death by negligence in the field of ordinary negligent crime,and through the introduction of typical cases,expounds the problems in the judicial identification of the implementation of the crime of causing death by negligence at present.Taking problem consciousness as the starting point of logical argument,this paper theoretically compares and analyzes the theory of breach of duty of care of objective imputation theory and new negligence theory.After weighing the advantages and disadvantages of the above two theories in the definition of negligent execution behavior,it is basically proved that the general path of the identification of negligent execution behavior of the crime of causing death.Combined with the common case fact types of this crime,this paper puts forward a judicial identification path that is suitable for this crime and has both form and substance,that is,the theory of breach of duty of care plays a formal danger guidance function,and the subordinate rule of objective imputation theory plays a substantive reasonable test function.