On Offense Of Joint Negligence

On Nov. 10th , the Supreme Court of People's Republic of China issued "Explanations for several problems concerning specific applications in handling criminal traffic cases"(hereinafter referred to as "Explanations") and, at two points, there are stipulations on cases under which a joint traffic offense is charged. As this explanation is given, hot debates are aroused among criminal law sector. Because traffic offense belongs to the category of typical offense of negligence, the judiciary explanations set the precedent that offense of joint negligence shall be handled as joint offenses, which conflicts with the present criminal theories in large scale. Article 25 of the current PRC Criminal Law stipulates : "Joint offenses means that a crime is committed by two persons or above intentionally. Two persons or above who have committed an unpremeditated crime will not be charged with joint offenses. In case that they should bear criminal responsibilities, they should be punished according to the crime they have committed respectively." Based on this stipulation, the persons who will be charged against joint offenses are only limited to the cases in which two persons or above have committed a deliberate crime and an offense of joint negligence doesn't constitute a deliberate crime. According to traditional criminal law theories, an offense of joint negligence doesn't have the intension linkage, which is a necessary element of joint offenses and consequently doesn't form joint offenses. Thus, are the judiciary explanations beyond the present situation or does the legislation lag behind? It's still a problem.There are two kind of joint offense, one is the actual joint offense, the other is the legal joint offense and offense of joint negligence is part of the former not the later. However, with the development of science and technology and the diversity of social work classification, a number of serious accidents are not caused by individuals, but because of persons negligence conducts which lead to the harmful consequence that constitutes the basic elements of a crime. So in real life and legal practice, offense of joint negligence has become an unneglectable and really existing social phenomenon. Offense of joint negligence exists in large quantity and there is also the trend of growing with scientific development and increasing applications, which has caused great damages to public safety and other major social welfares. However, the present criminal law and traditional theories on joint offenses find themselves unable to adapt to the social demand and can't punish and suppress these crimes. In consideration of the objectivity, hazards to society and punishability of joint negligence crime, there is the need to re-recoginizing it both in theory and in practice. First, by analyzing the advantages and disadvantages of various point of views, and the different attitudes from the foreign theories and the national legislation towards offense of joint negligence, the author puts forward his own ideas that when the respective actors who have and disobey the joint noticing obligations, they shall be criminated as joint negligence criminals. And then the author states the necessity of establishing offense of joint negligence by explaining the objectivity, social harmfulness and deserving punishment of the offense of joint negligence and the disadvantages of the present criminal law. Furthermore, the author tries to find the theoretical basis for the idea that offense of joint negligence belongs to joint offenses, by researching the real link between real joint offenses and the offense of negligence. Thus, the author exposed the essential of the joint negligence------"the connection of the criminal intent" through the theory of "interaction of the negligence psychology". With such analysis, the thesis strictly defines the concept and the essential elements of offense of joint negligence by analyzing "joint noticing obligations" so as to prevent the expansion of the penalty. Besides, the...