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Study On The Scope Of The Subject To The Crime Of Supervisory Negligence

Posted on:2017-05-22Degree:DoctorType:Dissertation
Country:ChinaCandidate:H ZhangFull Text:PDF
GTID:1366330485997891Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
Thomas ? Wei Ghent who is a famous German criminal law scholar, has made it clear that the relationship between the status quo of the times and criminal law was as follows: “Criminal law must be consistent with the living conditions of our society and the mode of action of human's spirit that we are able to know and recognize. In this sense, there is an inextricable correlation between the criminal law(like any other laws) and the reality: the criminal law shapes the reality(even in a very limited extent), and it is also impacted by the reality. The criminal law is so sensitive to the reality: the issue of whether the criminal law is still capable of achieving the goal of becoming the basic rule and norm that people think they currently cannot live without them, and that punish those misconducts the public cannot tolerate, is not determined by the eternal values or constant cognitive views but is determined by the subtle psychological state(it is often difficult to see) at a particular point in specific society.” Recently, it is not uncommon that large-scale security incidents happen with the closely approaching of the social risks and the raising of organization level of social risks, and the consequences of which are sufficiently serious. In the thinking mode of “personal responsibility” in the traditional criminal law, the regulatory way of focusing on the direct perpetrator's criminal liability causes some problems: if the perpetrator is in the upper level of the regulation, the perpetrator may escape from the criminal punishment; or the scope of punishment may extend upward due to the lack of standard. As a result of this, the punishment of the perpetrator is not keeping with the crime, the purpose of general prevention becomes difficult to achieve, and the regulatory effect of criminal law is lowered. We are tortured by the awkward reality: what can the criminal law research do to change the status quo? How to reasonably scope out the punishment to regulatory negligence? This paper is an application-oriented research, and focuses on the limitation to the punishment scope of regulatory negligence. Following the path from the theoretical study to the practical application, this paper based on the basic theories of criminal law sketches out the reasonable scope for the criminal liability for regulatory negligence in practice from subjective and objective perspectives including the sources of liability, the judgment of causation, the limitation of the inculpation in objectivity, and the identification of foreseeability.This paper is composed of five chapters in total excluding the Introduction, and its structure is from general to specific.Chapter I discusses the foundation and the issues. This chapter clarifies the definition of regulatory negligence from various debates by starting from the most basic definitions to further identify the subject and characteristics of the crime of regulatory negligence in the context of this paper; Secondly, this chapter reviews the generation and development of the theory of regulatory negligence, from which we can see that it is generated, spread and developed in Japan to limit the criminal liability of incidents to reasonable scope, and then clarifies the scope of the crime of regulatory negligence. Regulatory negligence is a historical product, and it not only is able to be found in our ancient legislation but also extensively exits;Finally, this chapter identifies some issues. Although the theories of regulatory negligence are well-developed and are proliferate in the judicial practice, there are still many difficulties in reasonably defining the scope of the crime of regulatory negligence because of the uniqueness of its own structure and the complex relationship of regulation.Chapter II introduces the basis and principles of reasonably identifying the scope of the subject of the crime of regulatory negligence. From the advance of negligence theories, there are three types of theories, including old negligence theory, new negligence theory, and super new negligence theory. By comparison, new negligence theory has some reasonableness in regulatory negligence, and should be the theoretical basis of constructing the reasonable scope of the subject of the crime of regulatory negligence. Indulgent yet strict is a criminal policy generated on the basis of the introspection to the history and the need to keep the pace with the new social trends, and it is necessary for reasonably defining the scope of the subject of the crime of regulatory negligence. The theory is that defining the scope of the subject of the crime of regulatory negligence must comply with certain principles, and the paper puts forward the principles of forward definition and reverse restriction based on the studies carried out and the uniqueness of regulatory negligence.Chapter III discusses the reasonable definition of the subject having negligence in regulatory. This paper defines regulatory negligence means the type of acts breaching the obligations of taking reasonable care in regulating and managing and injuring the legal interests and having substantive risks, by drawing on the definition of the negligence, from the perspective of the combination of the form and substance. There is great controversy in the issue of whether the external manifestation of regulatory negligence is act or omission. The structure of regulatory negligence contains the element of “have regulatory obligation but fail to perform”, which could be the test of judging omission and could be used to differ omission from action. On the presumption of regulatory negligence identified as an omission, as the sources of the obligation, both the formalism and the essentialism have their own reasonableness and weaknesses. Identifying regulatory negligence should first judge whether the obligation of taking reasonable care in regulating and managing is breached in form, and then judging whether the act of breaching the obligation of taking reasonable care in regulating and managing injuries the legal interests and has substantive risks in substance.Chapter IV reasonably defines the scope of the subject of regulatory negligence attribution and imputation. The traditional causality theory is based on the theory of condition, and it does not apply to the causality of regulatory negligence due to its uniqueness, such as the nature of inaction, indirect with the harmful consequence, and the involvements of other factors in the causality. The judgment of the causation of regulatory negligence may follow the below standards from the perspective of attribution : firstly, appropriately setting up the grounds for the judgment: the assumed facts that are irrelevant to the performance of the perpetrator should not be grounds of the judgment; taking the changed circumstances into account; treating the factor that all people have psychological mind to avoid the results as the threshold to judgment; realistically testing and judging the specific utility of physical factors of the average standard level according to a rule of thumb and physics experiments; secondly, judging whether there is a possibility of avoiding the results when we judge whether the perpetrator has duly performed the obligation based on the above background, and it is enough even the avoidance of the result is merely a possibility and no one hundred percent degree of certainty is required. Because the mere fact attribution is divorced from the normative evaluation in the criminal sense, the theory of objective liability attribution must be applied to normatively analyze the causality to deeper analyze from the perspective of liability attribution. Double checking by judging both the causality and liability attribution of the crime of regulatory negligence can ensure the reasonableness and standard of the objective attribution of harmful results.Chapter V discusses the reasonable definition of the foreseeability of the subject of regulatory negligence.. The identification of the actual foreseeability on regulatory negligence should be based on the causation process initiated due to the omission of the regulator who has substantial obligation to act, in combination with the cognitive capacity of the regulator. Where the causation process initiated by the perpetrator complies with the objective laws of the development process, the foreseeability of the perpetrator should be affirmed; where the causation process initiated by the perpetrator is different from the objective laws of the development process, the foreseeability of the perpetrator should be negated unless the perpetrator has special personal cognition. On the basis of judging the foreseeability on regulatory negligence to identify whether the perpetrator committing regulatory negligence has the foreseeability in criminal law according to trust principle.The legal foundation and mechanism of the principle of trust determines it can be a defense against the foreseeability. The principle of trust should include objective condition, subjective condition and exemplary condition in the application of regulatory negligence based on the uniqueness of regulatory negligence and the applicable conditions of the principle of trust in other areas.
Keywords/Search Tags:Regulatory Negligence, Act of Perpetrator, the Causation and the Inculpation in Objectivity, Foreseeability
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