Research on a number of issues of common criminal negligence
【Summary】 whether to establish a common criminal negligence, in theory, remaining in the controversial, in practice, an objective reality and can not be ignored. In this paper, the theoretical and legislative certainly
the need for the establishment of a common criminal negligence and the scope of contributory negligence a crime "common duty of care" and the common criminal negligence between the various acts of criminal responsibility and commitment to put forward its own views.
Key words contributory negligence Crime / common duty of care / aggravating / a good reason for that / extent of the fault
Because of the joint criminal connotation and extension of understanding of different scholars on traditional criminal law theory of joint criminal negligence whether to include co-existence of different
points of view of crime. However, in real life and judicial practice, contributory negligence is a crime, can not be ignored, the objective
existence of social phenomena, particularly in finer division of labor, mechanization and a high degree of development of the industry, a number of major accidents are often not made by individuals cause, but several people together constitute the elements of negligence caused the harm in keeping with the consequences. Therefore, there is already a common objective to conduct a theoretical study of criminal negligence is very necessary. This paper contributory negligence on the recognition of the
need for and scope of crime, common crime, the composition of elements of negligence, contributory negligence the perpetrator of criminal responsibility on issues such as shallow explored.
A common criminal negligence dispute over whether to set up
the theory of
Because of the commonality of the nature of joint criminal understanding of different刑法理论界on "whether to establish a common
criminal negligence" came to positive and negative two kinds of conclusions, the same time, there are scholars advocate a limited say for
Sure that it is generally for the conduct and purpose of a common behavior that scholars advocated by commentators. Common behavior is subjective theory of complicity. The doctrine that the crime is a vicious perpetrator of subjective performance, while the common criminal "common" is a common malignant manifestation of criminal acts together to achieve common offenders but the subjective vicious things. Therefore, as long as the joint exercise of committing acts subjectively, there is a natural
common meaning, objectively speaking, sufficient to constitute a common behavior. Therefore, the fault does not affect the establishment of a common crime, common crime is negligence established. The purpose of acts of negligence theory will be understood as a kind of not pay attention to the purpose of behavior is also a mean act, of course, may constitute a common fault of two or more crimes.
Deny that it is generally a crime jointly advocated by the scholars. Common crime is an accomplice theory of objectivism. The theory argued that common crime is criminally responsible for more than two capable people to participate in the implementation of a crime, so people need to act on the conditions that constitute the result of the awareness and the
hope for such an outcome, or laissez-faire common elements such as
deliberate. Thus, in crime, said supporters of the common view, common crime, the meaning of contact is essential, but a common criminal negligence could not have such meaning to contact, it was impossible the
establishment of a common criminal negligence.
Defined sure that believes that the establishment of contributory negligence is generally not criminal, but the co-perpetrator has a common
law duty of care and co-breach of that obligation, it should certainly
fault the Joint Principal. Holding such a view typical of the Japanese scholar Otsuka jen, its that "during commission of a crime to adapt the inspection system, we can see that the (delinquent) to set up the Joint Principal of the room," and that the establishment of contributory negligence crime, "In essence there are two or more persons to be conducted jointly with the occurrence of a crime, the elements belonging to a certain outcome of high-risk sexual behavior, and, in the law to deal
with it, you can lesson to each co-perpetrator the results of a common
duty of care to prevent, "" a number of actors based on the fault sparked the criminal result of the occasion, not only of the conduct of human behavior can, of course there is a common mistake committed by the
establishment of a common perpetrator, but only that the common behavior of person has a common duty of care and there is a breach of a common order that the establishment of joint principal offender guilty of
negligence. " (Note: The [Japanese] Otsuka Ren Zhu, Feng translated: "Crime on the fundamental issue," Chinese Politics and Law University Press, 1993, p. 259,262,261 page.)
Chinese scholars mostly from the criminal provisions of the starting
offense on the negative attitude of contributory negligence, that the law "provides a common crime, the reason is because the co-perpetrators in the
crime within the framework of intentional acts with each other using each of the joint exercise of criminal ... ..., so if we are constituted from a
criminal sense, rather than from the general social attitudes to evaluate the contributory negligence state of mind of the perpetrator, it can not be considered criminal negligence between the contact means with a common
criminal. "(Note: See Chen Xingliang: "joint commission of a crime", China Social Sciences Press, 1992, p. 436 ~ 437.) There are scholars, while recognizing the objective existence of a common criminal negligence, that "guilty of contributory negligence is an objective existence of a crime
form, is undeniable, and it is unavoidable. " But at the same time that "contributory negligence acts committed between the not and can not form a point contact, there is no real division of labor, cooperative relations,
but due to some kind of coincidence, only a few people, so that negligent acts giving rise to a harm to society results. based on common crime, subjective and objective consistent with the principle of not guilty of contributory negligence, nor necessary to deal with as a common criminal.
"(Note: See Jiang Wei:" General Theory of the patterns of crime ", Law Press, 1994, p. 220 ~ 221,221 ~ 222.) also scholars from the legislative and judicial practice, the actual needs, the common criminal negligence positive. For example, that "in the judicial practice, the fault of two or more people from the act constitutes a crime is uncommon common, and the judiciary will inevitably have to act according to each person's negligent behavior on the role of harmful results to solve the They issue of
criminal responsibility, which shows that the common criminal negligence is an objective existence of social phenomena; does not recognize that it is not realistic, and it is unwise. In fact, China's criminal law has recognized the 'contributory negligence crime' concept the Penal Code Article 25, paragraph 2, on 'a common fault of two or more crimes ... ...' provisions is proof. but, my criminal law of common crime do not fault the traditional common criminal (ie, co-intentional crime) Ba Le. " (Note: See
Hou Country says: "criminal negligence" theory, People's Publishing House 1996, 2nd edition, p. 194.)
Second, national legislation in cases of contributory negligence of crime
At present, the national criminal legislation of the different
attitudes of the common criminal negligence, mainly in the following various legislative example:
1. Clear that the subjective aspects of a common criminal only by the deliberate composition, contributory negligence is not a common crime,
criminalization, while excluding negligence instigator and misconduct to help offenders exist. If China's current Criminal Law Section for the "common crime", including the 25th to the 29th of Article 25th of which stipulates: "a common crime is an intentional crime refers to two or more persons jointly. Two or more crimes of contributory negligence, not a common criminalized; shall bear criminal responsibility in accordance with
their respective penalties for crimes committed. "while the 27th and 29th
respectively provide articles to help offenders and instigator, and in the provisions be listed as a common criminal person's statutory classification, which has denied negligence instigator and misconduct to help offenders exist.
2. Does not specify the implementation of a common crime committed only by the subjective aspects of intentional structure, but provides an accomplice (the narrow complicity) of the subjective aspects of composition can only be intentional, such as the current French Penal Code
Article 121-7 provides that: "Informed intentionally for help or assistance, in order to prepare for or facilitate the completion of a felony or misdemeanor, for a felony or misdemeanor of the accomplices. with gifts, promises, threats, orders, abuse of power or authority,
inciting or abetting the perpetrators, is also principal offense. "Other countries have similar legislation in Sweden, Germany and Greece.
3. Clear that the implementation of a common crime committed only by
the subjective aspects of deliberate composition, but did not clearly defined with the help abettor guilty of the subjective, the latter the subjective aspects of interpretation by the jurisprudence and doctrine. Section 61 of the Criminal Code, such as Japan, 62.
4. Expressly provides for the establishment of contributory negligence crimes, such as the Italian Penal Code Article 113: "several people work together as a misdemeanor crime, the subjects to provide for the punishment."
It is noteworthy that some countries, while in the legislation denying contributory negligence a crime, but in judicial practice, however, took a different approach, such as the Judicial Committee of China's Supreme People's Court on November 10, 2000 adopted the "Supreme
People's Court on the hearing Traffic Accident pieces of a number of issues specific application of the interpretation of the law, "Article V, paragraph 2, makes it clear that there is an accomplice in the crime of traffic accident. Japan's trial of the common practice of criminal
negligence, also holds a limited say for sure.
Third, crime is a common fault in the special form of joint criminal
In my opinion, certainly in the crime crime, the existence of contributory negligence, not only rooted in the reality of social
development and justice needs of practice, but also for improving the fault of the traditional theories of crime and common crime, the importance of theory.
First of all, from the theoretical to confirm the status of the
common mistakes and make in-depth study of crime in line with social
practice and development needs. With the rapid development of science and technology, human society has an unprecedented progress, a high degree of industrial civilization on the one hand make people's lives more
convenient, but on the other hand, it is also because of its inherent dangers of living things in the society through some sort of non - a
stable environment. Which, in many production areas of work, the increasingly fine division of labor, and any one part of a slightly flawed, will lead to serious consequences harmful to society. Well, for the social production and life there is a mutual division of labor, collaboration, dependencies of actors arising from failure to fulfill the
common duty of care negligence caused harm results to the common case of contributory negligence apply relevant theory of crime is bound to the conviction and sentencing of the perpetrator have an impact, and can urge all actors try to perform a common duty of care to safeguard social security.
Secondly, theoretically reasonable definition of a common criminal negligence, criminal negligence in line with the theory of the modern trends. Nearly a century, the Western socio-economic, industrial and other
areas highly developed one hundred years, but also the West criminal negligence theory, more and more attention at the same time has many hundred years of innovation, these two developments are not isolated, it is a cross-checked against The. It is precisely because of the high
technology and industrial development, on the one hand to improve the convenience of social life, on the other hand fraught with danger, especially in the high-speed transport sector, machinery, construction, chemical, pharmaceutical, medical and other industries, with a careless , the harm results are striking. So how in the maintenance of life, while easy to deal with the expected danger? The West刑法理论界crime in the
fault developed the "danger theory of distribution", "dependent on"
principle "was allowed to risk" and so on to fix and improve the the traditional theory of criminal negligence. Thus, criminal negligence theory is changing with the times, constantly improve and develop the. Apply the theory of negligence, legalistic approach was apparently not on the stereotypes real needs. Meanwhile, in the dangerous trades, and social division of labor become increasingly sophisticated, this mutual division of labor, collaboration, rely on the work of the development of a common
duty of care, then the failure to fulfill such a common duty of care and negligence lead to a result of serious harm to society how to punish all the perpetrators? Clearly mistakes were punished according to the individual is not appropriate, in this case, the reasonable definition of the crime of contributory negligence is the ability to compensate for this inadequate. At the same time, this is a common criminal negligence criminal negligence theory, in line with trends in the performance of theoretical development. Carefully studied before and after World War II Japan, the relevant jurisprudence to confirm this conclusion. Pre-World
War II, the Japanese era of the trial Court did not acknowledge a common criminal negligence case, but the Second World War, namely Japan's rapid
economic development period, the gradual emergence of Japanese courts to
recognize the fault of an accomplice of the case, and most occurred in the transportation, public safety, mechanical industrial operations and other
fields. (Note: See Lin Ya-Gang: "criminal negligence research", Wuhan
University Press, 2000, p. 259 ~ 260 pages.)
Finally, the traditional theory of joint criminal offense against the existence of contributory negligence does not explain the differences of
common criminal negligence can not be established. Common to the acts of common crime, said that with the focus of controversy between the crimes of contributory negligence had been "meaning to contact", and irrespective of one-sided debate between perspectives (one from a subjective, one from an objective), but this argument whether it can really reflects the nature of contributory negligence a crime then? contributory negligence is different from the common crime is a deliberate crime, a special form of
crime, then the two without distinction applies to a theory appropriate? can be said, whether it is "behavior common to say" Or "criminal common to say" to a large extent are based on a common intentional crime as a reference, whether it is "behavior common to say" the "subjective the same
as the vicious" or "crime common to say" the "subjective must be interesting to contact", are contributory negligence could not explain the nature of crime, nor criminal negligence as an excuse to deny the status
of common crime. Community contributory negligence a crime now it's the premise - that is the common duty of care (on this point in detail later in the discussion), to jointly deliberate crime and common crime, negligence attributable to common crimes under the ground, is simply
considering drawing on some of the common intentional crime has long been sophisticated research methods and the principles of conviction and sentencing, as well as some sort of consistency in the pursuit of both theoretical.
Fourth, the conditions for the establishment of a common criminal negligence
In real life, there are many more than two due to the fault of their own acts of psychological harm the implementation of the outcome of a situation, then, whether these conditions are indiscriminate criminal
negligence by a common handle it? Previously has been repeatedly mentioned that contributory negligence crime should have a special range. Therefore, this alleged crime of contributory negligence is defined as two or more
acts of negligence were based on a psychological, or duties to fulfill their legal requirements, occupational requirements of the common duty of care, resulting in serious harm to the consequences of behavior. The following crimes to be contributory negligence on the constituent elements to describe the conditions for the establishment of a common criminal negligence.
First, the crime must be two or more subjects, and all actors must meet the age of criminal responsibility, and has criminal responsibility,
an age of criminal responsibility, and a person who does not meet the age of criminal responsibility, or a criminal responsibility, and a non -
criminal responsibility of persons, can not constitute contributory negligence crime.
At the same time, the author believes that the principal crime, the identity of contributory negligence should be the appropriate limit. That is limited to under the law or the duties requirements of professional responsibility of a particular duty of care person. And the general based on some sort of coincidence, two or more of the contributory negligence leading to the consequences of a hazard situation, not to the criminalization of contributory negligence, negligence can only be
considered to be some sort of competing. The so-called negligence
competing is no common duty of care to two or more acts of contributory negligence, such as Ren-Otsuka about the legal status between the
different actors there is no common duty of care should therefore be
denied their common criminal negligenceBeing. (Note: The [Japanese] Otsuka Ren Zhu, Feng translated: "Crime on the fundamental issue," Chinese Politics and Law University Press, 1993, p. 259,262,261 page.) Take into account the restrictions in this capacity for the following for several reasons, first, already mentioned earlier that the crime is presented here the common fault of science and technology, industrial development, would be subject to above constraints can best reflect this need; Second, this
is also the source of the main constraints contributory negligence on the premise of a crime - a common duty of care, while the common duty of care is a common core of criminal negligence, the main limitation to the definition of the common duty of care to provide echo; the three pairs of contributory negligence on the crime of the main constraints can also be reduce the penalty of attack reflects the criminal law Modesty. Reposted elsewhere in the paper for free download http://
(B) the contributory negligence on the premise that the act is required to bear to prevent the harm results to a common duty of care
The common duty of care is negligence contact with the opportunity, but also the core of a common criminal negligence. What is the common duty
of care? Simply put, that is, the law or the duties, professional duty of care requirements of a specific person, as a result of the division of labor exists between each other, collaboration, dependent relationship, each one has a right not only their own behavior duties, professional activities of its own duty of care, while the other acts related to the activities with their own content has oversight, collaboration, attention to duty. Just like the Japanese scholar Otsuka Ren said: co-perpetrator's
attention only to their own behavior is not enough, the behavior of other peers should also be borne in mind, this common duty of care, from the "common" meaning of speaking, is a joint attention , mutual cooperation, mutual concern, duty of care.
So, how to act in practice to confirm whether the person has a common duty of care? Criminal negligence duty of care on the criteria for determining generally have three kinds of view, an objective that in general people's attention capacity, subjective theory is that individual
behavior should be attention to the ability as the standard, while the compromise that was the opinion that the duty of care should be based on most people's attention to capacity as the standard, and for breach of duty of care acts Zeyi personal attention to capacity as the standard. (Note: see [days] Nishihara, Haruo: "fault recognized standards" from Haruo Nishihara editor, Li Haidong, etc. translated: "Japan's criminal law, formation and characteristics", China Law Press, published jointly
with the Japanese written church.) should be said that the common duty of care is the duty of care as a whole, its obligation to the criteria established by an ordinary negligence no difference. However, I have been the main contributory negligence a crime defined in the law or the duties, occupation requires them to act a certain duty of care within the context of the subject. In general, these actors in a particular industry, as requested in pre-service must meet certain job requirements that have been
a more rigorous professional and technical training, and therefore its legal right, duties or occupation under the relevant Note obligations should be understood and known. Meanwhile, the common duty of care is the joint attention of all actors, mutual cooperation, mutual concern, the duty of care, for example, such as A, B and C were negative in some three common duty of care, as long as A, B, C three into any one of them to fulfill this common duty of care, it will not happen against the
consequences of the contrary, only three were not fulfilling this common duty of care only when they lead to harmful consequences. "The circumstances of not pay attention to, not as long as their compliance with the duty of care on the list, but must also facilitate the others pay
attention, but the omission of such an obligation." (Note: [Japanese] Otsuka Ren Zhu, Feng Jun translation : "Crime on the fundamental issue," Chinese Politics and Law University Press, 1993, p. 259,262,261 page.) the duty of care have such a common crime and general negligence duty of care differences, that such a common focus to is more stringent, complex and require an objective standard to be operating. Therefore, I believe that the identification of the common duty of care should be based on law or
the duties requirements for occupation premise that an objective, said. The fault between the actors there is no such a common duty of care, has become a common distinction between criminal negligence and the negligence of the competing key.
(C) two or more acts of people have a common duty of care breach of the common behavior, and that the acts of contributory negligence against the results led to the occurrence of statutory
Here's a common fault behavior, refers to the behavior of the per
capita did not properly perform their duty of care and the implementation of a common cause against the results of an act or omission occurred. The specific expression can work together not as a common act or several kinds of acts and omissions of the mixture. Time to look at the place where the
act could be implemented simultaneously, it may be successively implemented. But it is not the same as each other, or they may not be the results of simultaneous occurrence of conduct resulting in harm, which is
the establishment of a common criminal objective basis for negligence.
The刑法理论界, negligence instigator and misconduct to help commit the case for establishing the existence of the dispute. Sure of its existence, if any, Japanese scholars pointed out: "Penal Code Article 61 and 62 does not require the solicitation and to help to be from intentional, so there is no reason to deny complicity of fault." (Note: see the [Japanese] Kimura Turtle 2 editor , Gu Xiaorong, ZHENG Shu-guo and
other translated School: "Criminal Law Dictionary", the Shanghai Translation Publishing Company 1991, p. 367.) where an accomplice would include the instigator and help offenders. The practice of recognition of court decisions in Japan are also guilty of negligence help. To deny those
who think that: abettors, it should be realized because of his behavior to incite those who have been guilty of a particular crime took place meaning as for the implementation, is guilty of abetting intentional. There is no
such intentional instigator that is not true, is due to the fault of their own behavior, occasionally causing the mens rea or fault of others (ie, the fault of their own behavior, in order to arouse others to mens rea or fault of the reason) shall not be the head of the solicitation. Certainly guilty of negligence to help set up a common behavior, said that helping behavior is to assist persons convicted of subjective performance of a vicious and help the act itself is enough to help the guilty set up, with
no subjective difference between intentional or negligent, but denied committing the crime to help a common fault that that the act of helping behavior in accordance with the implementation of the existence, thereby contributing to act must be "deliberate" and whom, therefore, guilty of
negligence can not be established to help.
In my opinion, negligent act or instigation of acts of negligence with the help should not be included in the contributory negligence of crime among the following reasons:
First, the foregoing has been argued that, the main contributory negligence a crime should do the appropriate capacity constraints, that is, the law or the duties, occupations require certain common duty of care of people, and raised the theory of contributory negligence of crime, but
also for scientific advancement and work is fine, and certain areas of the community in a dangerous state of the Industry Code of Conduct; the same time, constitutes contributory negligence crimes, both being the division
of labor, collaborative relationship, and there is unlikely to instigate, to help the situation, therefore, negligence instigator and guilty of negligence should not be set up to help.
Second, from a rational point of view, criminal law, and the light
punishment of being non-criminal in the direction of development, while aiding and abetting and the negligence contributory negligence negligent
acts to help the crime, will expand the scope of criminal law to combat would be some kind of social risk less the fault of aiding and abetting
and negligence help into the area of crime, resulting in enlarged punishment for criminal negligence.
Therefore, I believe that would be the instigation of acts of negligence or negligent acts to the help of a common criminal negligence,
not only undermines the original purpose of the establishment of a common criminal negligence, but will inevitably cause undue penalty to expand results. For some of the serious consequences caused by the fault of incitement and negligent acts of assistance can be considered specifically in the provisions of criminal law provisions of a separate punishment.
(D) two or more of the act in breach of the common duty of care that has the psychological fault
Previously has been argued that, unlike the common fault of crime is a deliberate crime, a shared common patterns of crime, its subjective aspect is unlikely that the common meaning of an intentional crime, as have some contact, its a common fault on the subjective aspects of the
performance for the perpetrator or out of negligence unexpected result of a mental state or out of the fault of too much self-confident and believe
we can avoid the fault state of mind, were not fulfilling the common duty of care, which led to the results of the hazard from occurring. Here's a common fault of psychology in the "common", they were not reflected in the fulfilling the common duty of care on this point.
The above four elements is the establishment of a common crime, a necessary element of negligence, the lack of any one of them are not here to discuss a common criminal negligence.
5, common responsibility for the allocation of criminal negligence
China's Criminal Law Article 25, paragraph 2, provides that: two or
more crimes of contributory negligence is not a common crime. Shall bear criminal responsibility in accordance with their respective penalties for crimes committed. Accordingly, China's current criminal penalties for contributory negligence to follow the fault of the perpetrator of the
principle of independent responsibility, "that each person is only responsible for their actions, and do not responsible for the actions of others, only the result of common hazards partly responsible , that is,
the role of their negligence suit the responsibility, not on the full responsibility for the results of the hazard, which is different from the principle of shared responsibility for negligence deliberately made jointly and severally guilty of negligence. "(Note: See Jiang Wei:" Crime
Morphological Theory ", Law Press, 1994, p. 220 ~ 221,221 ~ 222.) In my