Elements of negligence committed by construction and their application_6119

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Elements of negligence committed by construction and their application_6119

    Elements of negligence committed by construction and their application

     Summary how to apply the criminal law shall be guilty of negligence penalties, although criminal law theory, there are different theories, however, a lack of fault committed from the perspective of the overall

    composition of the elements to think. This paper argues that the attention of delinquent obligations not provided for part of the legislators can not describe in detail the constituent elements of criminal acts, so that

    constitutes a crime under the provisions of the elements of the provisions also can not infer unlawful act, it must be to the attention of the judge obligation to make the necessary additional judgments and thus constitute the elements of its structure belongs to open. Analysis of Elements of

    negligence committed by delinquent construction is the expansion of the field of theoretical research, will help us to clear the type of delinquent significance, to promote ... ...

     German scholar, Mr. Hans Weierzheer, criminal elements in the composition scores Elements of the closed and open composition of elements. Elements of closure of the provisions of the Penal Code refers to all the characteristics of criminal acts, such crimes are identified, just under

    the criminal law provisions can, without the need to be supplemented by additional elements of the composition. Elements of openness means that legislators can not describe in detail all the constituent elements of criminal acts, acts that constitute the elements of what shall we have sex

    but could not determine the illegality, the judge has yet to make certain the necessary complement to determine the composition of elements. (Note: LBS. 47 (6). Vgl.ClausRoxin: OffeneTatbest @ ?

    tndeundRechtsplichtmerkmale, 1970, s. 1-3f. For the Elements of an open

    and rational understanding of the problem, see Yan-Hong Liu: "On the law

    of civil law Theory of defects and make judgments, "" Law and Business Research "2001 4.) Weierzheer Elements of the opening of the proposal of

    the concept of course, is based on civil law criminal law for the theoretical background of the initiative. Commission of a crime in our country and the civil law system, although there are different, however, constitute a crime according to our theory, there are also elements in the

    result of the provision does not constitute a complete and lead to the illegal nature of judgments on insufficient, there are also open to constitute a element. That some criminal elements under the penalty of

    norms that constitute the literal description, but also can not determine whether an offense - the commission of a crime like ours, our country is that of the law also requires judges under the general principles of crime or specific characteristics of the various factors such as the

    establishment of the crime of the composition of elements to be added is to open the composition of elements. (Note: see Liu Yanhong: "Elements of an open theoretical study", Peking University, doctoral thesis in 2001, the first 28-35 pages.) Delinquent is open in Elements of the more typical types of crime. Note that the core of delinquent obligations. At present, China guilty of criminal negligence on the question of how to supplement the duty of care merely remain in the fault committed itself in theory,

    but not from the perspective of fault committed Elements of reflection. In order to promote openness Elements of the composition of the elements of this new structural form of research, but also to strengthen the criminal law theory and practice sector delinquent correct understanding and application of fault committed by the author to be the duty of care from the start to explore the fault committed, as Elements of an open method of structural shape and its application.

     First, the attention of delinquent obligations of

     If the criminal acts from the study should be a prerequisite for punishment as the guilty should be punished as a basic form to describe the behavior, not just as guilty of an exception; Similarly, from sin to

    describe the acts should be punished a prerequisite for a crime intentionally is its typical example, while the fault committed the exception. "And the theory of negligence compared to intentional theory is relatively easy." (Binding) because the negligence theory is the

    theoretical penalty gray areas in the history of the criminal law, negligence has been committed with impunity in a penalty between the swing (Taro Nishida 1), Never punish or progressive to be fine (Binding). So far, the penalty became delinquent Although the common practice of national criminal law, but because of negligence committed with deliberately made with different features, how to apply the criminal law should be punished for negligence committed is still needed to further

    clarify the issue, in which the main attention is guilty of negligence supplementary application of the obligation.

     Delinquent refers to violations of the duty of care, that is, enough to avoid the facts of violation of the duty of care that occurred which

    led to the results constitute the elements of criminal acts took place. It may be acts of breach of duty of care but did not recognize the results of constituent elements will occur, or occur while aware of the results of constituent elements, but the breach of the obligation to believe, these results will not occur. Therefore, a reduction in the form of negligence is not intentional, but with deliberately different concepts. The establishment of delinquent condition that occurs against the law

    recognize the possibility of beneficial results, with the objective requirements based on the knowledge and attention to behavior, and breach of duty of care because it took place against France beneficial results.

Committed acts of negligence not only caused people have completed

    Elements of stereotyping of the behavior of the results, but in their actions violated the duty of care, with the result take place between the causal relationship. Therefore, the unlawfulness of delinquent rests on the breach of duty of care and the outbreak of the results under

    conditions that constitute the two elements. As the validity of the results is based on the premise of the existence of duty of care, therefore, the duty of care is negligence committed core. Therefore, the

    "modern criminal law, on the theory, delinquent, generally as a breach of the duty of care must, and to the duty of care concept, the central element for the fault committed." (Note: Chen Pusheng: "Criminal case studies", Taipei Sanmin 1988 edition, p. 306, p. 318, p. 318.) So,

    theoretically, even to a fault committed by the establishment known as the breach of duty of care. (Note: Xu Xiu: "explore the construction of delinquent - the ability to locate the perpetrator," "Journal of Criminal Law" Article 41, No. 2, April 1997.) As a result, how to understand and identify delinquent in the attention of obligation becomes extremely important.

     Is generally believed that the so-called breach of the duty of care

    means that if the acts of people have focused on awareness, we can

    anticipate and thus can avoid the occurrence of the results, but because people do not focus on acts of consciousness, there is no obligation to fulfill the results predicted, and therefore did not prevent the occurrence of the results. It has two meanings:

     First, the content of the duty of care obligations and the result is the result expected to avoid the obligations of unity. The duty of care on the one hand Elements of results to belong to recognize obligations. This predictable and simple focus of the psychological facts are different. If the behavior of people who, though concentrated attention, but not fulfilled its obligations foreseen, still constitutes a breach of duty of care negligence committed such negligence is an offense. Therefore, the

    duty of care obligations are foreseen. At the same time the duty of care to avoid the obligation is the result. If there is no foreseeable, there is no obligation to avoid the result of a; though predictable, but not impossible to avoid the result to avoid the possible occurrence, nor is it committed negligence duty of care. As to whether the results of a duty or a predictable result of avoiding the essence of obligation is delinquent, the old fault on the obligation is foreseen that the result of negligence

    committed by the nature of the new fault on the view that the result to avoid the essence of obligation is delinquent. However, that the predictable nature of delinquent obligations of the old fault of the theory is still today a powerful doctrine. Because, even if the

    perpetrators are obliged to take action to prevent the outcome occurring, but if the unforeseen result of a duty to prevent the results to not have to avoid the obligation, even if the result occurs, behavior is not

    criminal negligence.

     Second, the duty of care standard is objective and subjective duty of

    care duty of care unity. In general, the fault committed in the duty of care is defined as required in the social life of the average person's duty of care and the specific objective of actors in their capacity as the standard required by a subjective duty of care. An objective duty of care refers to the abstract, most people's attention capabilities as the standard, ordinary people can not pay attention, not the content of the

    duty of care; subjective duty of care claim with specific attention to the ability of actors as the standard, not the perpetrator's own attention to the scope of its attention within its power, that is, pay no attention to legal. Originally, on the negligent acts committed in the person's duty of care is controversial, namely, the existence of objective and subjective duty of care duty of care of the opposition, which is the objective and the subjective theory of the opposition, said. Subjective theory based on

    the individual rights protected, and from the individual's attention to the ability to find the standard of care that the subjectivity is the fault committed a vicious criminal characteristics. The perpetrator was able to recognize their risk of facts, should make every effort to fulfill the duty of care, if the breach of this obligation, it should be the burden of criminal liability. The problem is that such a duty of care is based on the perpetrator's attention to the limits of measurement, if they

    are the perpetrator's attention capacity can not achieve the scope, and still requires that the perpetrator pay attention, they are difficult one. The standard of care at this time, only in accordance with the perpetrator's subjective ability of the level of attention to make their own decision, this is a deliberate crime to the perpetrator's subjective understanding of the standard is the same reason. An objective that is based on the position of Social Defense, from the society in general, the

    attention of ordinary people the ability to find the standard of care. It is believed that everyone in society has the obligation to maintain good social order, therefore, the duty of care should be based on the community's attention on the capacity of ordinary people as the standard,

    and strive to make the average person in the community to abide by, rather than specifically for a particular of the person setting. So, pay no attention to the responsibility does not lie in the basis of the level of

    attention, but rather due but not the society usually require the attention of obligations; even a little attention to the ability of some poor people, if you do not carry the usual duty of care, in order to uphold the social order , it does not absolve her of criminal

    responsibility. The subjective and objective, said that "uncompromising, hard on each other, are inevitably biased, cover the thrust of the fault liability, does not want to pay attention less capable person, the burden of its attention to the less than the duty of care, nor To note that the higher capacity of the person, the burden of too much of the duty of care is based on attention to the degree, the solid can not do without some of the objective criteria in order to promote people's attention, but in the

    context of objective criteria, but also had to take into account the individual's attention capacity. subjective and that the ability to make people pay too much attention to the duty of care, very, fair and objective, said the ability of attention to people with less of the class

    in order to defy the power of the duty of care is often lower intelligence, although in order to do all of the attention of , I still can not help in criminal liability, there is not when, it says this two Shu reconcile the need for such "Therefore, today is generally believed

    that, based on objective to say" to the highest attention to the limits of ordinary people, but within the limits of this yet take into account the capacity of the perpetrator's attention to the subjective criteria of a

    minimum attention to relinquish strengths for weaknesses, both subjective and objective, said that the spirit of the arguments most Tuoqie. " (Note: Han Chung-mo: "Principles of Criminal Law", Taiwan Yu-Li Mei Printing Co.,

    Ltd., 1981 edition, p. 213.)

     Second, the duty of care and delinquent elements of the composition as an open case

     Because the duty of care is to identify the core of delinquent can be set up, and because the duty of care itself, the complexity of the theory,

    so in practice how to determine whether the actors have a certain duty of care difficult. This difficulty is reflected in the criteria to determine whether the perpetrator duty of care. This has resulted in delinquent why the composition of elements of an open question.

     Old fault the idea that, illegal objective, subjective

    responsibility, and therefore belong to the same fault and responsibility of intentional condition or form of liability. Not pay attention to the core of fault, if that do not pay attention and have a causal relationship between the results, would certainly constitute a fault committed by elements of compliance; if denied, it negates the responsibility. However, with the high-speed development of modern science and technology, and many

    major law contains a variety of benefit against risk behavior, such as high-speed driving of the vehicle involved in organ transplants and other medical behavior increasing, these acts have the usefulness and necessity of the community, so not believe that all of the risk behaviors are illegal; if the perpetrator is not whether the link fault, it is uncertain whether the illegality would be difficult to distinguish between fault and accident. Moreover, if only to discuss the responsibility of negligence,

    there is the risk of liability into the results. Therefore, the fault of elements from the responsibility transferred to the unlawful elements to grasp as to become a powerful doctrine of the Second World War. The further development of this view, the fault is also the conditions that constitute an element of. "Because constitute the elements of an offense type, as the unlawful element of the type of fault, first of all should be a factor as the Elements of the fault. In this way, the elements that

    constitute negligence, illegal nature of the responsibility of three stages of a problem. In the constitutions and law of stage , the fault of the breach of duty of care is based on an objective basis of ordinary people the duty of care; in the responsibility phase, the duty of care is based on subjective acts of man-made benchmark duty of care. "(Note: See

    Zhang Mingkai:" foreign criminal law outline " , Tsinghua University Press, 1999, p. 231-232 pp. Giesecke, a German scholar and Weigend that

    the duty of care will be an objective and subjective duty of care, respectively constitutions and illegal elements of the responsibility to examine the elements and has many advantages, First, is conducive to the formation of the "in practice the result has often been too much emphasis

    on the responsibility of the counter. Second, even if the acts were not responsible for the same negligent acts can be linked with the security action. Third, if a state of intoxication implementation is negligence, then the (German Penal Code), article 323 states that a prerequisite for the penalty is based on objective criteria delinquent to decide, even if the perpetrator because the drink failed to fulfill its duty of care. Fourthly, if the the objective case from the point of delinquent will be

    under the general rules to the attention of a particular situation demands an explanation. Finally, the fault committed by objective criteria include the recognition of the higher lines of responsibility, it prevents excessive to specific requirements of individuals , therefore, contribute to achieving the principle of fairness. "[Germany] Hans Heinrich Giesecke, Tuomasiwei Ghent:" German criminal law textbooks "(remarks), XU Jiu-sheng

    translation, China Legal Publishing House 2001 Edition, p. 678.)

     In this way, whether the destruction of an objective, the necessary duty of care is the composition of elements to be unlawful judgments; actors according to their individual capacity, whether it is capable of fulfilling an objective duty of care, it is the question of

    responsibility. (Note: Wessels, StrafrechtAT, 22Aufl., 1992, S.206)

     However, the lawless elements which constitute the duty of care to judge the objective quite difficult. "Objective duty of a former general,

    the objective of a legal obligation. Though its actual behavior as an object, there is still a considerable degree of detail do not, that is, with a very specific character. It is the duty of care, not just in the face of the class the conduct of a particular personal accident and should

    have, such as the average person is in the perpetrator's position, may also require the same attention to it as the general, objectivity. In other words, the duty of care is bound to specific actors, should require its The average man-made objects for pre-existing. commentators due

    diligence, should set the field on the illegality of who is there on the doctrine to 'the outside attention', 'objective attention', 'the general objective of the attention' and other terms performance of all departments

    to focus on the character of the duty of care. that the injury, such as the crime of manslaughter, although the results of the Department of sheer guilty as such, in the form of specifically human death or injury of the results of its constituent elements of the elements, not the results of the operations of its cause to be provided for, but still the action is based on negligence, non-action-and results of the causal relationship

    between the simple process, the Department of Integrated actions and

    results, the results of their neglect caused by the action of the law means. Such duty of care because of their general, objectivity, still has some type of means that are conditions that constitute the elements. "(Note: Chen Pusheng:" Criminal case studies ", Taipei Sanmin 1988, p. 306, p. 318, p. 318.) Therefore, according to an objective duty of care to determine whether acts of attention, we should, where appropriate, the risk in a particular state of the perpetrator did not intend to intend to

    create a legal interest against the objective to request what kind of behavior. Therefore, deserve Elements of the fault of the wrongfulness of conduct, not because they result in the outcome of the final decision. "If

    the results are based on acts of violation of legal order to the field of human interaction serious and sensible behavior of the members raised the attention of state requirements, if the result of the occurrence of such ordinary people can be predictable, there is only negligent acts.

    Therefore In this sense, the fault committed Elements of the assessment should be supplemented by the judge. "(Note: quoted in [Germany] Hans Heinrich Giesecke, Tuomasiwei Ghent:" German Criminal Law textbook "(remarks), XU Jiu-sheng translation, China Legal Press, 2001, p. 677; No.

    677.) Therefore, the content of the duty of care still should be supplemented by the judge on each case," is highly accepted among scholars fault Elements of Offense, in order to open constituent elements, or to supplement constitutes a necessary element. "(Note: Chen Pusheng:" Criminal case studies ", Taipei Sanmin 1988, p. 306, p. 318, p. 318.) Only after the judge's additional determinations apply only after then according to the perpetrator's personality as well as the ability to

    consider the possibility of requiring the perpetrator criminally responsible for such acts. Obviously, in different fault committed in the duty of care exists or not, can only judge the facts according to each individual judgments; the duty of care, or, more specifically, is an

    objective duty of care are in need of additional parts.

     Moreover, this added "there is no violation of the principle of uncertainty, because the duty of care will continue to develop by means other than through judicial practice to make it concrete approach is hard to imagine, and, in comparison with the content of the law, the public through their own experience, tend to be more easily understood bounden duty of care. "(Note: quoted in [Germany] Hans Heinrich Giesecke,

    Tuomasiwei Ghent:" German criminal law textbooks "(remarks) , XU Jiu-Sheng

    translation, China Legal Press, 2001, p. 677; No. 677.) For example, China's criminal law provisions of Article 233 of homicide by negligence, acts of the circumstances under which people have the obligation to

    prevent the death of another person, and the perpetrator whether such obligations, which are not directly in the clause has been provided, but rather by a judge based on the needs of the judicial practice gradually become clear issue. Another example is the crime of criminal law provisions of the traffic accident, vehicles driving personnel, the duty of care, it is by the judge in accordance with relevant road traffic regulations to supplement the provisions of judgments. Originally, the

    duty of care as the core of delinquent for delinquent judgments essential to set up, however, legislators are not the core element in the provision will provide for that. Guilty of negligence duty of care in the lack of legislation, decided that it will always be open to constituent elements -

    the need of judges, where applicable, the part of this lack of additional determinations. In general, the judge added that the attention of the fault committed, "must be proven by law a legal obligation. Just a habit

    or an act of moral requirements, and does not constitute such a legal obligation. As for the legal obligations to prevent the results can be any legal specification-based. The laws and regulations in the statutory or common law, with public law or private law characteristic feature of the legal order directly to a specific composition of specific legal obligations, or indirectly, in order to constitute a legally binding contractual obligations of conduct are irrelevant. (Note: [Germany] Franz

    von Liszt: "German criminal law textbook," Xu Hisao translation, Law Press, 2000 edition, p. 217.) However, when under customary law to determine the perpetrator to prevent damage to the results of a particular legal obligations arising from the question whether, in the extent to be

    able to prove that it is very difficult. In this regard, the German scholar Metzger pointed out that "the specific content of the obligations can only be the case in the most careful consideration of the special circumstances at the time can be determined. "(Note: Lin-mao:" From an

    objective theory of attribution of criminal responsibility to determine traffic accidents "," Journal of Criminal Law "Article 39, No. 3, June 1995.)

     In short, "Essential Elements of delinquent and non-genuine omission

    committed by constituent elements, there is a representative to supplement the composition of elements as necessary. In order to discover the character as the actors act into the Elements of the type being, even if the For negligence, not really acts of omission is also necessary to clarify the meaning of its type. To this end, for beyond the limits of that part of the legislative technique, it can only be within a certain range of interpretation theory to supplement the statutory conditions that

    constitute. "( Note: [date] Large zhǒng @ ? ren: "Personality of the

    Criminal Lawidea," "Law Classroom" 1990 No. 2.) rather as a type of clear significance, that is exactly what we discussed in an open composition of delinquent elements of meaning. It shows that constitute

    the elements of delinquent types are not closed, but open. As the fault committed, in essence, are the result of value judgments, therefore, "the judge on the fault is extremely complementary value needs to be done, which is criminal law to explain (D ogmatik), one of a very difficult problem." (Note: Lin-mao: "From an objective theory of attribution of criminal responsibility to judge traffic accidents", "Journal of Criminal Law" Article 39, No. 3, June 1995.) What really is the criteria and, most

    Tuoqie fault committed against an objective duty of care to make appropriate judgments, constitute the elements required to stand and open the perspective for further.

     3, the fault committed as an open constituent elements of the

    complementary application of the methodology

     As an open application by the judge added that the composition of elements of criminal negligence, it is not only a criminal law concept and institutional dimensions of the problem, it is a practical operation

    problems. How should a judge to apply the fault committed specific operations?

     Elements of the judge's open additional application of pairs of cases, the exercise of discretion, through the composition of the elements of the criminal law to interpret and achieve. Therefore, to explore the application of the judge as an open issue of Elements of the fault committed, is to explore how to use the judge Principles of interpretation

of the law applicable to criminal negligence committed in the composition

    of elements of the problem. To this end, the author proposed interpretation of the law from the types of identification to proceed, according to open Elements of the "open" to a different situation to determine the shape and the opening up of delinquent compatible


     1. Fault committed by applicable method

     In order to decide specific cases, judges must explore the intention of the law to get the premise of a referee. Regulate access to a specific case dealing with the process of decision premise is that law stated methodology to find law activities, which is commonly referred to as a broad legal interpretation. With regard to whether the broad interpretation of the law contains several interpretation, then the

    interpretation of the law school there are different views, mainly divided into two-thirds said that with the two Takahashi said. The former Mr. Yang Renshou of my scholars in Taiwan represented China in the mainland to be Professor of Law, Mr. Liang Huixing inheritance, as well as China and

    France on the use of hermeneutics; for the latter to German law, hermeneutics master, the value of legal representatives KarlLarenz the banner of and in Taiwan, China and France are well-known scholar Mr. Huang

    Maorong of promotion, as well as in China and France on the use of hermeneutics.

     Two-thirds said. (Note: Yang Renshou: "Methodology of Law", China University of Political Science Press, 1999, p. 98, p. 139.) Considered that a broad interpretation of the law also includes a narrow legal

    interpretation, value added, as well as loopholes in the law to add three ways. A narrow legal interpretation of legal norms that are not clear as to the context, structure, France and Italy, purpose or method to determine the constitutionality of such norms for meaningful content. Value added is the uncertain legal concepts and general terms of an explanation. Supplementary means that the legal loopholes should provide for matters not provided for, as legislators of the negligence, unforeseen

    or circumstances change, caused by the fact that is not based on a legal requirement, resulting in "legal loophole" should be supplemented by the judiciary is concerned. Among them, the law is not clear, the Department of the scope of an interpretation of the law; and the lack of provisions of the law, then the Department of supplementary questions. The above three kinds of interpretation in Mr. Liang Huixing's "Civil hermeneutics," a book is to reflect and apply.

     2 Takahashi said. That a broad interpretation of the law is divided into a narrow legal interpretation and legal to add two kinds of methods or two stages. A narrow legal interpretation of the legislative intent and to explore the application and specific facts of the case. The method has

    the text to explain meaning, history, structure, purpose, and so on several constitutional interpretation. The loopholes in the law and its

    supplementary information, the situation is complex and so forth. (Note: [Germany] KarlLarenz: "Legal Methodology," Chen Ai-e translation, Taiwan,

    five in Southern Book Publishing Company in 1996 edition, p. 225 below, p. 281, p. 285, p. 282, p. 282, p. 279 below.) law is the law added the letter may be outside the law applicable to the case. (Note: Huang

    Maorong: "Methods and Modern Civil Law," China Politics and Law University Press, 2001, p. 353,354 p. 302, p. 330, p. 294.) Reposted elsewhere in the paper for free download http:/ /

     Takahashi said about two-thirds say and recognize that a narrow legal

    interpretation, and a narrow view of legal interpretation or less the same. Their difference is whether the separate recognition of an uncertain legal concepts and general terms of the value of complementary approaches.

     In my opinion, two opinions Takahashi said makes much more sense. 2 Takahashi said the views of scholars on the legal loopholes that there are differences. Hold the view that the legal concept of uncertainty and general provisions are loopholes in the law who hold the view that those

    who do not belong. If they are legal loopholes, goes without saying that, in accordance with the applicable vulnerabilities can be complementary approaches; if not a legal loopholes, then apply to their operations are legal interpretation. (Note: Huang Maorong: "Methods and Modern Civil

    Law," China Politics and Law University Press, 2001, p. 353,354 p. 302, p. 330, p. 294.) Such a theory than Trichotomy Individual will be uncertain functions and the application of the general terms of value added that an

    independent approach, the more reasonable. Trichotomy Though the uncertainty concept and complement the General Conditions applicable to a legal interpretation of a separate, but there is no reason the instructions. This is the first. Second, the perspective of so-called

    uncertainty function and general terms for the "value added" approach, its meaning is highly ambiguous, and with a narrow legal interpretation and loopholes to supplement and can not be completely separated from Yi Yanzhi, these two methods to explain non-value added is not a factor. It

    can be said that any interpretation is an interpretation of those subjective factors involved in varying degrees, all have value added components. Furthermore, the value of complementary approaches because of

    their abstract they do not have their own applicable rules, with the ultimate outcome is often through a narrow approach to legal interpretation, and therefore hold the dichotomy which even scholars also pointed out that the value added and the narrow legal interpretation

    relations "since the case greatly." (Note: Yang Renshou: "Methodology of Law", China University of Political Science Press, 1999, p. 98, p. 139.) The so-called "self is a big deal," is actually the application of the law interpretation. That being so, the value added as a separate and independent legal interpretation on the meaning of losing their independence. For the above reasons, the author in favor of the dichotomy, opposed to the legal concept of uncertainty and the general terms of a

    separate law to be interpreted as a text form, and method of its application - the value added as a separate legal interpretation approach.

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