A Research Of Responsibility Of Notice In Criminal Law

With economic of our country developing, society relations becomes more and more complicated, which also leads to much increasing harmfulness to society due to negligence. The effects on society due to involuntary crime draw our attention gradually too. We have to analyze the criminal negligence, while we study the theory of negligent crime and determine it in judicial practice. In China criminal law, provisions on negligent crime is simple by comparison and theory study is not deep, which gives rise so much problems in determination of negligent crime, for example,"how to define the foreseeable obligation and avoidable obligation of actor, where to find the base of foreseeable obligation, or how is careful ability and so on?"which is should be settled in criminal law. Violating duty of care is essential of criminal negligence and is very important in determining the negligent crime. For the reasons above, making use of or referring to achievements at home and abroad, I expect it useful to improve the native study to guide judicial practice, which will be of great research value.The thesis consists of five parts, about 30,000 Chinese characters:Part one, summery of responsibility of notice, which discusses about the concept, contents and features of it. This part mainly analyzes the theory research on the concept and contents of responsibility of notice at home and abroad by comparison, defining the intension and extension of it. The responsibility of notice in criminal law refers to responsibility that the doer should be careful when doing something or not to do something, meanwhile necessary measures should be taken to prevent harmfulness happening. It is the union of foreseeable result duty and avoidable results duty, duty of subjective mind and duty of object act, which I am in favor of and it is also a popular opinion in the field of criminal law at home and abroad.Part two, the base of responsibility of notice, which is first discussed and defined on base of compromising every kind of theories from form and essence individually. I agree with the opinion that the base of duty of notice is divided into form of law and form of non law. Meanwhile, the essence of duty of notice is defined to protect public living order or just as foreigner defines to protect society interest. The definition of responsibility of notice makes its base important to exist.Part three, violation of responsibility of notice. First, I analyze the ability of actor during when he fulfill the responsibility of notice, providing the support in the theory study and judicial practice. In my opinion, to determine the ability about actor's responsibility of notice should not consider recognize ability and avoidable ability but the actor's capacity. Second, both positive and negative aspects from which the violation of responsibility of notice is assessed so as to be useful to judicial practice. To my mind, the standard of judging violation of responsibility of notice should adopt objective criterion, that is, general ability of notice, considering contract circumstance where doer stays, objectively to assess the act of doer. The standard of positive and negative of duty of notice means to share or reduce the responsibility of doer to exempt the his duty, of which the allowed danger principle and the principle of reliance of duty are included.Part four, A duty of care conflict judicial cognizance, as to the determination on conflict of responsibility of notice, I think the straight alone theory used in our criminal law is positive.Part five, the problems and reflection on lawful application of responsibility of notice, in which, two problems are probed deeply. First, legislation problem about responsibility of notice should be provided in criminal law. The provision on duty of notice in the general rule should be mainly regarded as criterion, but in the new negligent crime, the complement provision should be complied with. Second, the reliance principle should be introduced to our criminal law in my opinion. The more feasible way is to introduce the reliance principle to the judicial interpretation.The thesis, under the support of theory and practice as well as on the base of present study, mainly probes into the connotation, base of theory and violation determination about duty of notice and so on, expecting to achieve effect of from one to know all, so as to be made better use of in judicial practice.