The Theoretical Construction Of Criminal Negligence

As the subjective profile, criminal negligence is the core in the study on negligent crime at all times. The particular contents of criminal negligence are found gradually, but there are lots of matters not to be solved well. This doctoral dissertation which divides into six chapters constructs the theory of criminal negligence and discusses its systematic orientation based on its psychologic concept in order to acquire a scientific and integrated theory of criminal negligence.The first chapter is the prolegomenon to this paper, which divides into three sections and explains the motivation, the intention and the means to study criminal negligence. The difficult course to discover its value and contents inspires me to study it. There should be right methodological standpoint and idiographic means in order to achieve this intention. Empiricism claims monism which is a view that value root in reality rather than artificial concept, but rationalism insists on dualism which considers rational value system only can be set up by the understanding of people. However, both of them are not opposite to each other, dualism should be accepted in setting intention of value, while monism should be taken in choosing material and means. There should be a means of problem-thinking in system besides means of history, compare, synthesis and demonstration, in order to construct logistic and effectual system info.The second chapter which divides into four sections reviews the academic history of criminal negligence in Chinese Mainland, U.S.S.R., Russia and the areas of continent law system and common law system. As a whole, criminal negligence was found in the distinguishing from criminal intent, then was considered different from accident, and so was studied gradually. In Chinese Mainland, uniform concept of criminal negligence did not formed though there was refined cognition about it in antiquity; the rudimental system info of criminal negligence came into being in neoteric times by learning the theory of criminal negligence in continent law system; while, the theory of criminal negligence today developped from Soviet Russia and take on a new look of controversy. In areas of continent law system, there is no provision about criminal negligence in criminal law in Germany and Japan, but the theory of criminal negligence is with tail in the water, discussing it separately and debating drastically between old school and new school. The principle of allowable dangers and the principle of trust formed in Germany, while the doctrine of discomposure and the supervisory negligence appeared in Japan. The annotate school in Italy is the founder of criminal negligence theory, but the morder negligent theory emphasizes particularly on external profile, and brings forward putative negligence. In common law system, criminal negligence is one of the mens rea, and the generic external criterion is put forward with the mature system of litigation. The criminal negligence in U.K. doesn’t include the recklessness, but the one of U.S.A. comprises it. The criminal negligence of U.S.S.R. and Russia is successional, its contents and psychologic structure is focused, being divided into overconfident negligence and inattentive negligence, and evolves new types, namely, ignorant negligence and volitive negligence.The third chapter which divides into three sections confirms the proper concept of criminal negligence based on other doctrines about it. The concept of criminal negligence abstracts the essential characters of it according as the regulations of concept. There are lots of doctrines about it. The doctrine of no-congition reflects the simple episteme about criminal negligence in the bud of subjective responsibility; the inattentive viewpoint focuses on the psychologic contents of it under the tidal current of naturalism, laying a ontological foundation for the value concept; the foreseeable opinion looks for the reprehensive reason from the attention ability, which is in favor of distinguishing the criminal negligence from accident, but it can’t interpret allowable dangers or activity-adoption negligence; the doctrine of offending against duty of care brings forward normative criminal negligence, but the negligent crime will be extent in allowable dangers if the duty of care means the duty to foresee the harm, or the criminal negligence will be objectified if the duty of care includes the measures to avoid the harm; the allegation of wishing avoidance originated from the structure of criminal intent, its volitive content is either artificial draft or compulsive substitute; the doctrine of synthesis tries to define criminal negligence by lots of elements, but it is either a stack or a dilation. According to the factual characters and the evaluated intention of criminal negligence, it should include the elements of psychology, ethic and criterion. Therefore, criminal negligence is the state that the actor doesn’t cognize the harmful qualities of his conduct or the measures to avoid it, though he can and should cognize them when he does it.The fourth chapter which divides into four sections probes into the psychologic structure of criminal negligence after the concept of mens rea and its psychologic contens being definitized. As one of the mens rea, it’s not the ones occurred before or after conduct but the ones occurred in company with conduct that should be reviewed in criminal law. Emotion ought not to be reviewed in criterion, though cognition, emotion and volition are unitive. In the cognition of inattentive negligence, the actor doesn’t cognize the harmful qualities of his conduct or the measures to avoid it, whether he cognized them before or not; however, the overconfident actor cognizes them, but he denies his act is dangerous at last because of his credulity, as is a negative cognition attached some conditions. Thus the cognition of criminal negligence is a state that the actor doesn’t cognize the harmful qualities of his conduct or the measures to avoid it. The criminal cognition is the precondition to the criminal volition, which includes the psychologic state to control his act and the attitude towards the offended interests when he cognizes his harmful act. The volition of criminal negligence is that the actor doesn’t form the effectual attitude to avoid offence, that is to say, there is no attitude in inattentive negligence because the actor doesn’t cognize the harmful act and the means of avoidance; the attitude in overconfident negligence is to avoid the harm because he thinks the harm will not happen by error, but this attitude can’t avoid the harm to interests. There are lots of doctrines in cognition, volition or syncretism to distinguish between overconfident negligence and indirect intent, but anyone of them is deficient. The holistic criterion only can distinguish them validly, namely, it is overconfident negligence if the actor cognizes the harmful act at last, otherwise it is indirect intent, and this difference reflects the unlikeness in criminal volition. There are no transformation between criminal negligence and criminal intent because either of them is opposite to each other.The fifth chapter which divides into four sections reconstructs the theory of criminal negligence from the angles of ethic, law and psychology after clearing up necessary premises. The psychologic structure of criminal negligence is just the factual base for criminal estimation, so there should be some preconditions for reproaching the actor who offends negligenct crime. There is no proper scope or value for criminal negligence in lots of theoretics about act except the controllable doctrine. The criminal condemn determined the crime is pinning the violated interests on the actor, but none of deontological condemn, societal condemn and personality condemn can be regarded as the foundation of responsibility because of their deficiencies. The foundation of subjective responsibility either in negligent crime or intentional crime should be that the actor doesn’t form the volitive state to avoid the dangers of act, though he can and should form it when he does it. So the condemn to criminal negligence should take the possibility and necessary of volition controlling into account. Whether the anthropic volition is free or not, it should be assumed relative free in criminal responsibility, and we must assume that the actor will form the volitive state to avoid the dangers of act if he cognizes the harmful act, otherwise it is irrational to criminate him.The attention ability is the ethical element of criminal negligence and the precondition of the duty of care, whose contents limit to cognition ability, namely, the ability to cognize the dangers of act and its avoidance means after removing his indign vice, not including the ability of taking means to avoid dangers. As for the estimation criterion of attention ability, all the theories of objectivism, subjectivism and eclecticism limit to estimation object. The estimator should estimate whether the actor can cognize the harmful act and its avoidance means under the circumstance when hen acts, according to his knowledge and experience about ability. It is opposite state between concrete cognition and rough cognition in extent of attention ability, but both of them deviate from its value intent, so the sure extent is that the actor can cognize his harmful act and its avoidance means.The duty of care is the core element of criminal negligence, which is the duty that the actor exerts his attention ability to congnize his harmful act and its avoidance means, not including the subjective duty of endowing with motivation and objective duty of taking avoidance means. The duty of care divides into obvious ones and implied ones in the light of its definitude. Under the allowable danger, the duty of care just includes avoidance means according to relevant and preventive rules which reduce the essential danger of the harmful act, so we shouldn’t expect the actor to cognize it again, and we can’t impute the happened damage to the actor under this circumstance. The duty of care is well distributed among participants under the principle of trust based on the allowable danger, so the actor must trust other participants will carry out their duty of care, otherwise he can’t cognize the dangerous act is allowable in law, that is to say, it is not the duty of care for the actor that the other participants will violate their duty of care. The controllable condition is prolonged under supervisory negligence, which includes the act of others and the defective institution, but the actor is not demanded to congnize the concrete harmful results, he is just required to have cognizance of his supervisory duty.Inattention is the psychologic factor of criminal negligence, which means the factual state that the actor doesn’t cognize the harmful act and its avoidance means though he has the duty of care. The main form of inattention is no-attention, improper diversion of attention, inappropriate divide of attention and no-focusing of attention ability. Under the same conditions, there is a volitional attitude to avoid the damage and some avoidance means to have be taken in overconfident negligence after the actor cognizes the harmful act; however, none of them exists in inattentive negligence, so the extend of overconfident negligence is slighter than that of inattentive negligence. Whether the actor cognizes he can’t control the act in negligence exceeded attention ability or ignorant negligence, he considers the act is no factual danger, but he has the attention ability cognizing the harmful act, so both of them just happened in inattentive negligence. Supposing the harmful result will still occur even if the actor performed his duty well, it is not the danger that the actor violated the duty of care but the allowable danger that happened in violating interests, so there is no imputable inattention. There is no several negligenct acts but only one negligent act in staggered negligence, in which the actor violates several precautionary rules of allowable danger, blundering away several chances to avoid the harm. There is no possibility for joint negligence in legal interpretation, neither is there rationality for it in theory. In violating joint duties of care, the duty of care is extended to the acts of others, so the actor should be punished by supervisory negligence; in causing crimes of others negligently, the actor should be punished by individual negligence according to the opening constitution of negligent crime.The sixth chapter which divides into two sections researches the systematic station of criminal negligence in system of criminal theory in Chinese Mainland and continent law system. In continent law system, both of the classic criminal theory and the neoclassicism criminal theory regard the criminal negligence as the factor of responsibility, which disobeys the staggered estimation of criminal theory; in the teleology criminal theory and the criminal theory teleology-neoclassicism synthesis the criminal negligence has double stations, which inner elements are not definite. In common doctrine of three-stratum criminal theory, the criminal negligence should be reviewed by delamination, reviewing whether the actor cognizes the harmful act and its avoidance means at last in the phase of criminal constitution, confirming whether the actor is demanded to cognize them in the phase of illegality, and ascertaining whether the actor has the attention ability in the phase of responsibility. In the criminal theory of Chinese Mainland, the traditional four-element theory treats the criminal negligence as the contents of subjective constitution of crime, but insists on reviewing attention ability and forecast duty, which forms appraising repeatedly in determinating the criminal negligence; the two-stratum criminal theory is actually the variation of the classic criminal theory, ant the three-stratum criminal theory is similar to the criminal theory teleology-neoclassicism synthesis, so the inherent defects still exist there. The tactic order of elements in the traditional four-element theory needs amending, namely, according to the impersonal practice and the aim to apprehend and apply the criminal law, firstly judging whether the whole violated interests need penalty after finding out the fact, then reviewing which rule the act accords with in the order arranged by objective elements, subjective elements, object elements and subject elements. In the amended system of criminal theory, the psychologic element, canonical element and ethical element should be respectively put in subjective elements, object elements and subject elements.