Study On Subjective Responsibility Elements Of Constitution Of Crime Under Risk Society

Seen from the angle of sociology, China has possessed the typical basic characteristics of risk society, and it has stepped into risk society. For meeting citizen’s requirements on safety value, the participation in legislation by the public may transfer risk concept in risk society into risk concept in jurisprudence. Risk regulated by Criminal Law is decided under the essential requirements of criminal nature, and it is the technical risk different from and yet related to risk in traditional criminal law. Under risk society, the development of theory of intention and theory of negligence exhibited objective trend. The identification of intention should stick to cognitive ipso position while not will ipso position, should approach behavior ipso position while not be firmly entrenched in results ipso position. Social harmfulness and social illegality are the cognitive contents of intention. In the judgment on social harmfulness cognition, the standard of “ordinary people” while not “doer” should be adopted; and in the judgment of illegality cognition, the standard of “preference for the standard on ordinary people, and auxiliary for the standard on doer” may be adopted, thereby achieving the coordination application of social harmfulness and illegality cognition in the cognizance of intentional crime. The traditional theory of negligence has different extents of malfunctions in risk regulation of criminal law, social considerable theory and permissible risk theory may be referred to as duty of care for setting objective code standard, and modified objective theory can be adopted as subject judgment standard of duty of care. Results foreseeability and avoidance are two major contents of duty of care. Foreseeable object is the specific results different from sense of fear, and the extent and standard of foreseeability possess certain normality. Doer has two different results avoidance duties including “doing certain act of perpetrating to avoid the occurrence of harmful results” and “not doing certain “dangerous(risk) behavior to avoid the occurrence of dangerous results”.