| According to the general view,the perpetrator should be liable for negligence when he causally realized the constitutive elements of an objective crime by violating the duty of care.The duty of care here comes from the norms of care,that is,administrative regulations such as traffic laws,medical laws and regulations constitute the source of the duty of care.However,if the driver of the vehicle was speeding in a distance a few hours ago,leading to an early arrival at the location of the incident,the pedestrian who happened to appear at the intersection was hit and killed.If there was no speeding behavior several hours ago,the driver would not be in the "just" place at the "just" time,and no car accident would occur.However,it is clearly inappropriate to attribute the accident to the speeding behavior a few hours ago.In this regard,the "causality" in the judgment of negligence should be limited.Our task is to build a teleological link between the breach of duty of care and the negligence and lawlessness,so as to exclude those accidental causal links.Before linking the duty of care with negligence and lawlessness,we must first clarify the basic content of the two.The notion of negligence and lawlessness does not exist from the beginning,because negligence in the classical criminal theory system only exists on the subjective psychological level,and it is still the same in the current traditional four-factor crime constitution theory.Therefore,there is only room for negligence and lawlessness to be discussed in the theory of class crime composition.Negligence and lawlessness mainly discuss the content of the objective level,or the content of the "illegal" level.The core content element of "illegal" is the duty of care.Because it is different from intentional crime,the establishment of negligent crime must discuss the issue of obligation,and general intentional crime is not needed.For example,when the green light is on,a qualified vehicle driver deliberately kills the passerby who runs the red light at the prescribed speed.At this time,the vehicle driver does not violate any traffic regulations,but still meets the objective elements of the crime of intentional homicide.This shows that breach of duty of care and deliberate illegality are mutually exclusive.We cannot affirm his homicide because the driver of the vehicle did not violate the traffic laws,because the effectiveness of the homicide prohibition cannot be excluded because of the attention norms in the traffic laws.In this case,if the driver lays in ambush where the enemy must pass every day in the dark night,and then runs a red light without driving lights and hits the enemy at a speeding speed.When making an objective and unlawful judgment of intentional homicide,no one will investigate the many violations of traffic laws by drivers,because failure to drive lights,running red lights and other violations of the regulations are not important to the establishment of an intentional crime.After defining the negligence wrongfulness and the duty of care,it is necessary to discuss how the duty of care affects the judgment of negligence and wrongdoing.After negating the old negligence theory,no matter whether it is adopting the new negligence theory,the revised old negligence theory or any negligence theory,it is inseparable from the independent judgment of wrongful behavior and result wrongfulness in negligent wrongfulness.The former shows that the duty of care in the pre-law needs to be transformed into the duty of care in the criminal law through the connection between the criminal law and the administrative law,and the behavior that violates the duty of care in the criminal law can be regarded as a negligent illegal act;the latter is shown in the violation of the duty of care and the duty of care in the criminal law.The normative association between the results of infringement of legal interest,that is,assuming that the implementation of the obligatory behavior can eliminate the imputation,it is affirming that the negligence result is illegal.The normativeness of the duty of care is just in line with the normative determination of wrongful behavior and wrong result.The former is manifested as illegal behavior that should be presumed by the attention norms and generally lead to dangerous results.Behaviors such as not wearing a seat belt and other violations of the duty of care can also cause danger,but they are not prohibited by the attention norms.Risk;the latter manifests that the result of illegality should be effective,that is,compliance with the norms of care can exclude the emergence of legal interests infringement results,and based on various factors,even if the duty of care is still unavoidable,the emergence of legal interests infringement results should be treated as not.There is a possibility of avoiding the result to deny the establishment of the result illegality.This article is divided into six chapters: The first chapter is the explanation of negligence and lawlessness,and the content of the second chapter is the duty of care through negligence and lawlessness.The third chapter further explains the content of the duty of care ontology on the basis of the definition of the second chapter.The fourth chapter is the core chapter of this article.It mainly discusses how the duty of care affects the judgment of negligence and lawlessness.It mainly includes two parts,namely the impact of the breach of the duty of care on the wrongful conduct and the wrongful result.Chapters 5 and 6 are The contents of these two parts are specifically developed,so the fourth chapter and the fifth and sixth chapters are the total score relationship.Specifically,each chapter contains the following:Chapter one is the structural system of negligent crime's unlawfulness.The concept of duty of care is divided into two parts: "attention" and "duty"."Attention" is a fact of mental activity and the internal aspect corresponding to the external concept of behavior.While "duty" is the product of the combination of "subjectivity" and "normative",but it focuses more on an objective norm.When "attention" and "obligation" are combined,it constitutes the constitutive elements of negligence.That is,objectively failing to perform the corresponding obligation and subjectively failing to pay the corresponding attention.The duty of care is different from the ability to pay attention.The duty of care should also be imposed on the actors who do not have the ability to pay attention.It is inevitable for the code of conduct.The duty of care is divided into subjective duty of care and objective duty of care.It can also be divided into external duty of care and internal duty of care.The two classifications are not the same thing.The objective duty of care refers to the abstract requirements for ordinary people in the unlawfulness stage,while the subjective duty of care is a requirement for the perpetrator at the level of guilt.The external duty of care corresponds to the external behavior of the individual,and the internal duty of care is the inner psychology of the individual.The research object of this article is objective duty of care.The obligation of foreseeing the result and the obligation of avoiding the result,which are easy to confuse with them,but they do not correspond to the external duty of care and the internal duty of care,and they both have external and internal thing.The duty of care in civil law is also different from the duty of care in criminal law.There are differences in the degree of legal interest infringement and the scope of legal interest infringement.The duty of care is also different from the duty of action.The crime of omission is within the scope of actions that should be prohibited in the criminal law,while negligence is not.Chapter two is the connotation of the negligent crime's duty of care.Negligent crime's unlawfulness has experienced the evolution from the classical criminal theory system to the neoclassical criminal theory system,and the teleological criminal system and then to the rational criminal theory system.Negligence has also been transformed from the element of culpability to the content of unlawfulness judgment.At the same time,its status has also been changed from the orientation of result unlawfulness to the orientation of dualism of behavior unlawfulness and result unlawfulness in the unlawfulness judgment.In this process,negligent unlawfulness has an ontological structure,because the subjective will is the basic element that initiate the judgment of unlawfulness.Negligent crimes also has a normative structure,because unlike deliberate crimes,negligent crimes do not consciously initiate the criminal process,but allow themselves to fall into a state where they cannot be determined by themselves,thus deviating from the requirement of duty norms.In this sense,deliberate unlawfulness and negligent unlawfulness should be distinguished.They have different establishment standards and different imputation systems.The former is reflected in the judgment of the duty of care is not in deliberate crimes,but the core of the negligent crime is the judgment of the duty of care.The latter is reflected in the use of individual standards for deliberate crimes to judge unlawfulness,while negligent crimes need to be based on ordinary people's standards to define the unlawfulness.Chapter three is the object,content and source of the duty of care.The object of the duty of care is the general people in society,and the "unlawfulness-culpability" system requires the general standard.Because the ability to act and the ability to motivate are indistinguishable,so the system of "unlawfulness-culpability" should be insisted.In addition,attempts to oppose the general standard through individualized standards are also unsuccessful.The reason is that the perpetrators can hardly assume the role of general people in unlawfulness judgments.The theory of considering duty norms as the ability to maintain norms is also debatable.A huge difference between the common person standard and the individual person standard is the problem of the perpetrator's special cognition,but there is no problem in the field of negligent crimes.The cognition based on personal ability should not be called special cognition.The special knowledge obtained accidently is also not unlawfulness because it does not have the need for general prevention.The content of the duty of care includes the obligation of result foresight and the obligation of avoidance of result.The obligation of result foresight is the premise of the obligation of result foresight,the possibility of foresight is the premise of the obligation of result foresight,and the possibility of prior result avoidance is the premise of the obligation of result avoidance.The possibility of prior result avoidance is the content of the result,and the possibility of avoiding the result afterwards is the content of the result unlawfulness.The sources of the duty of care include laws,communicating regulations,and specific circumstances.Chapter Four is the norm limitation of duty of care to the negligent crime's unlawfulness.The theory of objective imputation has obvious advantages in the judgment of negligent unlawfulness.Compared with the fact association of the theory of cause and the value association of the adequate cause,the objective imputation theory is integrated into the normative mode of thinking.However,the objective imputation theory is not objective,and it overwhelms the judgment of handlungsunrecht and covers too much.In this regard,we should adhere to the judgment order of attribution and imputation,and define "objectivity" from the perspective of judgment standards,as well as the independent judgments of handlungsunrecht and erfolgsunrecht.It is necessary to distinguish handlungsunrecht and erfolgsunrecht in negligent crimes.Although negligent attempted crimes is not supported by legislation,it has theoretical significance.The concept of danger should be used to connect handlungsunrecht and erfolgsunrecht.Behavior risk belongs to abstract danger,and result danger belongs to specific danger.The former refers to the general danger of the behavior that leads to the infringement of legal interests,and the latter is the actual danger in specific cases.There is no foreseeing of behavioral risks.but only about knowing or not.While,there is foreseeing of causality and results.The judgment of handlungsunrecht and erfolgsunrecht should be realized through the Protective Purpose of Norms.The Protective Purpose of Norms has multiple meanings.Among them,the duty protective purpose of norms in negligent crimes conform to this article.Specifically,handlungsunrecht should be in accordance with the risk of result's normal association which presupposed by duty norms,and the dangerous result in erfolgsunrecht should be the result of infringement of legal interest that the duty norm protect.Chapter five is the norm limitation of the duty of care's violative association to the handlungsunrecht.An important part of the theory of negligent unlawfulness is handlungsunrecht.The core of the negligent behavior should be the violation of the duty of care and the rule of risk exclusion rather than risk-increasing theory.According to the violation of the duty of care theory,the duty of care in the pre-law should be transformed into the duty of care in the criminal law according to the Protective Purpose of Norms,and Order-based the legal interests of the pre-law should be classified,which contains substantive content related to people can be transformed into legal benefits,so as to realize the formal limitation of the duty of care.Obligation violation relevance judgment belongs to the substantive constriction standard of negligent conduct.Obligation violation of relevance judgment belongs to the substantive constriction standard of negligent conduct.In this crime,it is established that the behavior risk is excluded from the behavior that cannot cause specific danger.Chapter six is the norm limitation of legal interest protective association to the erfolgsunrecht.The judgment of erfolgsunrecht should be defined as the legal interest protective association.The content that needs to be judged is the possibility of avoiding the result,and the object of the judgment is the substitute behavior of the obligation.The theory of increasing-risk may turn the result crime into a dangerous crime.Therefore,it should be determined or almost determined to comply with the obligation and the result is still unavoidable,the imputation should be excluded.Because requiring citizens to comply with the duty of care will not only add unnecessary burdens to citizens,but will also impose the duty of care fuzziness and abstraction deviate from its normative essence,just for increasing the probability of legal interest protection.For the substitute behavior of the obligation,we should adhere to a hypothetical way of thinking.After assuming the violation of the duty of care by other actors and the victim's factors as legal factors that do not affect the judgment of the crime,the duty of care of the actor to be witnessed should be judged separately The correlation between the violation and the result of the infringement of legal interests.In addition,for the screening of alternative acts in the substitute behavior of the obligation,the minimum standards in the duty of care should be adhered to.For the determination of "same result",relatively specific results under the same legal interest protection purpose should be considered. |
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