Modern Criminal Law Of China "willful Misconduct" Doctrine Of Research

This dissertation is about the evolution of the theory of "intent" and "negligence", which was the important content in the process of modernization of Chinese criminal laws. Most of the scholars in modem China combined "intent" and "negligence" into a new concept, such as "condition of liability", "intent of liability" or "condition of shouldering liability" .According to the explanations of most scholars, "condition of liability" means the condition for the actor to shoulder liability. In other words, the act done by a person who has criminal liability must meet the condition of vicious expression, and the condition is called "condition of liability". The "condition of liability" has two status: intent and negligence.The criminal science in modern China was characterized with annotative jurisprudence. So, the evolution of the idea of "intent" and "negligence" was divided into periods by the three criminal codes, they were The Interim Criminal Code, The Criminal Code of 1928 and the Criminal Code of 1935. "The period of modernization" in this article referred to the period from 1906 to the Feb. of 1949. This dissertation has not only exploited the theory of "condition of liability", and also compared the academy of "intent" and "negligence" with the relative theory of ancient China and that of the western countries. Chapterâ… has introduced the summarized concept of "intent" and "negligence"--- "condition of liability", including the importation of the concept and its status in the constitution of crime. Ancient China had some simple idea of crime intent and crime negligence, but no "general provision" had ever been established. So in the process of importing foreign laws, the scholars in the period of Modern China had to create many new words to describe the new ideas. Because of the flexibility of the formation of Chinese words, before such new words had been accepted widely, there existed many words to describe the same object. So, "intent of liability", "condition of shouldering liability" and "the element of liability" were co-exiting with "condition of liability". Such concepts were regarded as the subjective elements of the constitution of crime. But the status of the "subjective element" in the constitution of crime of Modern China was different with that of western countries, this difference also affected the meaning of "condition of liability".Chapterâ…¡has introduced some basic questions of"intent", such as the definition and classification of "intent", the scope of "the object of cognition", the will element of indirect "intent". The criminal law of ancient China has so many terms about crime intent. During the period of The Interim Criminal Code, "intent" was interpreted in the "doctrine of cognitiveness". During the period of The Criminal Code of 1928, "intent" was interpreted in the "doctrine of cognitiveness", "the doctrine of will" and "the doctrine of tolerance". During the period of Criminal Code of 1935, "the doctrine of will" was widely accepted in the field of criminal science. This situation was similar with the explanations of "intent" in Germany and Japan. As for the classification of "intent", besides direct and indirect "intent", certain and uncertain "intent", antecedent and subsequent "intent", premeditated and pure intent, conditional and unconditional "intent" were provided by the scholars. Comparing with the criminal science of Germany and Japan, the Chinese scholars did not use uniform words to explain the classification of "intent" in the codes and did not give right explanation to indirect intent either. The establishment of "intent" is based on the realization of "the facts which forms crime" and "the facts which increase criminal punishment". As for the cognition of unlawfulness, the scholars in modern China usually divided laws into "the decrees of criminal punishment" and "the decrees not criminal punishment". "the decrees of criminal punishment" is unnecessary for the establishment of "intent", but "the decrees not criminal punishment" is always necessary for it. As for the cognition of "the cause preventing unlawfulness", it was regarded as the facts of constituting crime, or as the facts of violating laws. It was always put within the scope of the object of cognition. All such ideas were influenced by Germany and Japan.Chapterâ…¢has introduced some basic question of "negligence", such as definition, classification, the depth of "the duty of care", and the relation between intent and negligence. Ancient China did not distinguish "mistake" from "crime negligence". Indirect intent, accidental event, or "force majeure" were not distinguished from "crime negligence" also. In ancient China, there was no specific concept of "crime negligence", just some relative concepts which were related with "crime negligence". During the period of The Interim Criminal Code, people's cognition of "negligence" was deeply influenced by Japanese "idea of no care", so both the scholars and the judges held that "negligence" just referred to "no care, so no cognition". During the latter two periods, "idea of no care" gradually declined, no matter legislation, academic ideas or judicial judgments all turned to Germany's "idea of preventing result". But the scholars in modern China did not understand this foreign idea thoroughly. For their definition of "negligence" were just the copy of the legislative provisions, but not the highly generalization done by German scholars.Ancient China had some simple, but not clear classifications of "negligence". The scholars in modern China had made several classifications of "negligence", such as recognized and unrecognized negligence, professional negligence and common negligence, serious negligence and slight negligence, antecedent negligence and subsequent negligence, active negligence and inactive negligence. Through comparison, we can find that Chinese scholars had shared the same opinion about the important matters with the foreign scholars. As for the depth of "the duty of care", the scholars during the period of The Interim Criminal Code did not distinguish "the standard of duty of care" from "the standard of the ability of care". During the period of Criminal Code of 1935, though most of the scholars had realized that "the depth of duty of care" included two meanings: "the standard of duty of care" and "the standard of the ability of care", we found that the "idea of compromise" held by Chinese was different with that of Germany or Japan. As for the standard of distinguishing "cognitive negligence" and "unnecessary intent", the Chinese scholars during The Interim Criminal Code and Criminal Code of 1928 had the similar idea with the scholars of Germany and Japan, ie. the will element of "recognizance or tolerance" was taken as the distinguishing standard. But during the period of Criminal Code of 1935, the element of "will" had been was taken by some scholars who gave exposition to this question.Chapterâ…£has introduced some basic questions about "mistake"---the inactive aspect of "intent", such as the definition, the classification of "mistake", the classification of "fact mistake" and it's influence on the establishment of "intent", the classification of "legal mistake" and it's influence on the establishment of "intent". In ancient China, there was no uniform term to describe "intent", but the ancient people had some simple knowledge of "mistake". The criminal science in ancient China would exempt punishment in the situation of "fact mistake", but had different attitude towards "legal mistake" in different periods.The scholars in the period of Modern China usually divided "mistake" into "fact mistake" and "legal mistake". "fact mistake" were further divided into "statutory fact mistake" and "specific fact mistake", or "object mistake" and "measure mistake", obviously, this idea was influenced by the criminal science of Germany and Japan. The mainstream idea of "legal mistake" can be summarized like this: "legal mistake" can be divided into "criminal punishment decree mistake" and "the mistake except criminal punishment decree mistake", the first one does not prevent "intent", the latter prevents "intent". This argument was also the opinion which was accepted in Germany and Japan.At last, in its concluding remarks, this article reached such conclusions: the importation of the theory of "intent and negligence" made by Modern China is successful. Through this introduction, China's criminal law had turned from "the doctrine of result" to "the doctrine of crime liability". And since then, China went on the path of Continental Legal Family. China's knowledge of criminal's psychological status had developed from simple to system. Most important of all, the achievement of the importation of the "intent and negligence" theory in the Modern China had paved basis for the relative theory of Taiwan's modern criminal science, including the concepts and the specific systems. Of course, some defects existed in the process of importing the western theory of "intent and negligence", for example, they had not unified the terms when transplanting the western laws, they had missed some significant content which is related with "intent and negligence", and some of their explanations of "intent and negligence" were not accurate, even wrong. Such defects would be the lessons for us when transplanting the western laws in modern age.