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Research On The Judicial Application Of The Crime Of Intentional Injury

Posted on:2013-01-19Degree:DoctorType:Dissertation
Country:ChinaCandidate:D ZhaoFull Text:PDF
GTID:1116330371479314Subject:Criminal Law
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Being a typical natural crime which violating personal rights, the crime ofintentional injury has a long history and has been the one the most common crimesmet by the judicial branch. In the judicial process, many problems relating to thecrime of intentional injury have been encountered, which calls for further research onthe legislation and the judicial application of the Crime of Intentional Injury. Thisthesis is committed to provide systemized resolution to those common puzzles in thisrespect, which includes the following 4 parts.ChapterⅠsummarized the judicial application of the Crime of Intentional Injury.By reviewing the legislative history of this crime in our country, the author comparedthe legislative models and found the general common grounds of the problems. Oneof the fundamental problems of such legislation is the theory of multiple volitions,which means there are cross between crimes and general volitions, and there arequality and quantity factors in the legislation of crimes. The Crime of IntentionalInjury and common injury belongs to crimes and civil damages respectively. TheCrime of Intentional Injury can be found in the Article 234 and other related parts inthe present Criminal Law of China, which are very vague and there are not cleardescription of the act reus of this crime, resulted in the impropriation between thecrime and punishment. Judges often found themselves totally lost by the imperfectlegislation. On the other hand, the defendant will be in disadvantage position whenfacing such vague legislation.ChapterⅡmainly focus on the judicial determination of the Crime of IntentionalInjury, including the mens rea, the act, the results and the causation. The authorargued that the mens rea of the Crime of Intentional Injury is kind of general intent ofinjury, this is to say that as long as not the intention to kill, the intention to cause corporal injury will be seen as the mens rea of the Crime of Intentional Injury.Judging from this point, there is no need for the legislation of aggravated intentionalinjury, and the mens rea as to the death should be only the negligence. And there iscrucial difference between intention of battery and the intention of injury, thetransition of the intention of injury and the mens rea afterwards. The author putforwards that the judicial branch should differentiate the typical battery, injury underthe consent of the victims and the instigation. The instigation of the Crime ofIntentional Injury should be legislated as an independent crime. The injury under theconsent of the victims should be seen as innocent, though those unreasonable shouldbe criminalized. The author also argued that the judicial forensic rules should berevised so that lessens the judicial risk by not totally relying on this individualevidence. On the contrary, the judges should consider all the legal evidencescomprehensively. Most importantly, the judges should pay more attention to theevidences of psychological injury. The author argued that the traditional causationtheory should give away to the theory of liability allocation, which will be resolve theexceptional causation problems, such as the inventing causation, the injury under theconsent of the victims, etc, more efficiently.ChapterⅢis the judicial determination of the atypical intentional injury, i.e., thetransitional intentional injury. After analyzing the legislation of the Crime ofIntentional Injury, comparing the Crime of Intentional Injury with aggravated injury,the fictional multiple crimes, the author put forward that when there are multiple acts,the most severe one should be held as the basis for the determination of crime. Underthis perspective, acts such as illegal custody, torture for confession, battery in public,selling blood under coercion can all been seen as the Crime of Intentional Injury, so asto the crime of interfering freedom of marriage by violence, naissance and forcefultransition.ChapterⅣis about the accomplice of the Crime of Intentional Injury, especiallythe mens rea and the act resus of the Crime of Intentional Injury. By analyzing theintention beforehand, the author compared different school of thoughts in this respectand argued that the mens rea of accomplice of the Crime of Intentional Injury should include negligence. In the present legislative model, as long as those accomplicesshare the common intention of injury, and they are negligent as to the death of thevictims, they will be found guilty of the Crime of Intentional Injury. As to thosedefendants who share no common mens rea, they will not be seen as the accompliceof the Crime of Intentional Injury.In the conclusion, the author argued that in the revision of the legislation of theCrime of Intentional Injury, the act resus should be more specific and systemized, andthe legal sentencing factors should be added.
Keywords/Search Tags:The Crime of Intentional Injury, The Mens Rea, The Causation, The Transitional Crime, The Accomplice of the Crime of Intentional Injury
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