Elements of negligence committed by construction and their application_6119

By Vincent Murray,2014-10-31 11:24
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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-