On The Aggravated Consequential Offence

It's generally acknowledged that the aggravated consequentialoffence originates from one of the Cannon Law principles Versari in reillicita.To this end, limiting the establishment scope of the aggrevatedconsequential offence becomes the core and guiding line of its theoreticaldevelopment. Here follows the main reasons why limiting the establishmentscope of the aggravated consequential offence serves as the core andguiding line of its theoretical development. 1. The tension between theaggravated consequential offence and responsibilism transmits fromwhether requesting the subjective crime originally to the proportionalityof subjective crime and penalty establishment on the basis of committingthe subjective crime. The aggravated consequential offence theory failsto solve the issue thoroughly. 2. The severe penalty of the aggravatedconsequential offence in the legislation requests to charge the aggravatedconsequential offence cautiously, thus it's inevitably necessary tolimit its establishment scope strictly.3. The objectification tendencyof the determination standard enlarges the establishment scope of theaggravated consequential offence. There are no other alternatives in termsof responsibilism and criminal policy and the theoretical research as well.The preventive criminal policy generally provides the realisticfoundation to the aggravated consequential offence, while responsibilismrequests to limit the establishment scope of the aggravated consequentialoffence. The presence of the aggravated consequential offence and thelimitation of the establishment scope at the same time are thelegislators'balance and integration of the two.It's concluded the Chinese legislation regulations on the aggravatedconsequential offence have three distinctive characteristics. Hence theaggravated consequential offence in China has the following characteristics: 1. The function of judicial interpretation ishighlighted in the determination of the aggravated consequential offence.The judicial interpretations expand the penal codes and enlarge the scopeof the aggravated consequential offence in terms of the subjective crimeand the aggravated consequences. 2. The determination of theconsequence-aggravated scope focuses on the aggravated consequencesinstead of the subjective crime, which has reached the consensus that,the aggravated consequences of intention. The indistinct features of theconsequence-aggravated forms lead to the different understandings of theaggravated consequences and further the different establishment scope ofthe consequence-aggravated crime. The author divides the scope into fourlevels, widest-sensed, wide-sensed, narrowest-sensed, and narrow-sensed.Defining the aggravated consequences as the premise of causing to injuryor death, the author adopts the wide-sensed scope of theconsequence-aggravated crime, including types of causing to injury ordeath specified in the legislation and types of serious consequences inthe judicial interpretation. 3. The biggest issue of the aggravatedconsequential offence crime lies in the setting of the penalty. Firstly,the connection model makes the penalty higher. Secondly, theconsequence-aggravated crime in the same penalty faces the doubt of themajor health and life right and the same penalty to the different crimes.Finally, the setting of the aggravated consequential offence with absolutedeterminate penalty cancels the free discretion of the aggravatedconsequential offence with different circumstances and the subtractionfunction of judicial application to the higher penalty of the aggravatedconsequential offence.The aggravated consequential offence theory hasdeveloped the abstract crime elements, which are mainly shown in thelimitation of its subjective elements and the determination of the causalrelations between the act and the aggravated consequences. There are nospecial regulations about the subjective elements of the aggravated consequential offence in the general provisions of criminal law, meanwhile,the legislation articles fails to reflect the causal relations betweenthe act and the aggravated consequences.There are still the limiting factors of the consequence-aggravated crimein the Chinese legislation, which are largely shown in three aspects, thatis, the purpose of legal norms to the aggravated consequential offencescope; the criminal quantitative factors to the aggravated consequentialoffence scope and the adjusting function of Article 63 in criminal law.The casual relations in criminal law are different from those in nature.In judicial practice, the judgment of the aggravated consequential offencehas the problems of few demonstrations, simple reasons, and different,vague and confused expressions. Meanwhile, there are no special elementsin judging the casual relations of the aggravated consequential offence,however, the influence of judging the casual relations on limiting theestablishment of the crime can't be emphasized more. Here comes thequestion, what determinate methods or models should be adopted whenjudging the casual relations of the aggravated consequential offence orthe aggravated consequences belongs to actor's act? The premise ofanswering the above question is to understand the exiting models of judgingthe casual relations of the aggravated consequential offence.The relevantjudicial practice and theories in Germany, Japan and Taiwan region areconcluded as follows. 1. The Japanese theoretical field has always heldthat the establishment of the aggravated consequential offence should bebased on the casual relations of act and consequences. However, theJapanese judicial practice still holds the theory of condition. 2. Germanpractice and theoretical field limit the theory of condition in differentways. The former gives the aggravated consequential offence specialelements, that is, the direct elements between act and consequences, whilethe latter adopts the consequence liability theory on the basis of thecondition theory. The two both believe that the subjective aspect only fails to satisfy the requests of responsibilism. 3. Though under the impactof the objective liability theory, the major idea in Taiwan region stillholds the casual relations between the act and consequence in theestablishment of the aggravated consequential offence. In conclusion, thecontinental legal system undergoes the development from theappropriateness of the casual relations to the objective liability theorywhose basic thought is to distinguish the attribution and imputation andto make the imputation on the basis of attribution. The aggravatedconsequential offence is not special. Judging the casual relations of theaggravated consequential offence should adhere to the special elements,that is, the directness on the basis of the condition theory. The criminaltheory explores the subjective elements of aggravated consequentialoffence in two ways. The controversy about the subjective crime of theaggravated consequential offence does not influence the determination ofthe crime in judicial practice. Compared with the determination of thatin Taiwan region and German criminal practice, the thesis holds that thedetermination of that in China should consist of two parts: the intentionof basis crime and the default of the aggravated consequences, which thejudicial practice adheres to. The subjective determination of theaggravated consequential offence in Chinese judicial practice is lack ofthe demonstration and expressed too simply, and adopts the way of indirectdetermination, which bears the suspicion of the consequence liability.Therefore, the determination of the subjective crime of the aggravatedconsequential offence should be specified to the intention of the basicact and the default of the aggravated consequence, among which the latteris more significant. The determination of the default is divided into thedetermination of the duty of care and the ability to foresee. As committingthe basic crime of the consequence-aggravated crime means to disobey theduty of care, therefore the determination of the default can be simplifiedto the determination of the ability to foresee. On the determination of the ability to foresee, there are three standards: subjectivism,objectivism and eclecticism. The author believes China should adopt thesubjectivism, which are supported by the following three reasons; 1. Thesevere penalty requests the detailed and strict research and demonstration.The actor and the law can't bear the unfairness brought by the objectivism.2. The subjectivism can't lead to the willfulness of the judicialdetermination. 3. The objectivism, which has the fault of formalism itself,fails to improve the faults in the determination of the aggravatedconsequential offence...