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On Strict Liability Of The Criminal Law In This Country

Posted on:2012-05-25Degree:MasterType:Thesis
Country:ChinaCandidate:S G CaoFull Text:PDF
GTID:2166330332497808Subject:Law
Abstract/Summary:PDF Full Text Request
The system of strict liability which is originate from the countries with English-American law systems has been paid more attention by our academic circles of criminal law. The system of strict liability was originated in 19th Century, and the foundation of English-American law systems is based on utility and social defense, and it has been widely used in the countries with English-American law systems. However, the countries with the continental law system, which proposal subjective transgression and the idea discriminate against this system. This exclusion mainly shows that, it discriminates against objective Imputation, i.e. absolute strict liability; however it has the various interpretations to relative strict liability. The relative strict liability cannot shut out the considerations of subjective factors to defendant; it shows particularity on criterion of liability, i.e. in case of existing objective behavior, in this situation, subjective fault of defendant will be made presumption as existing. If a defendant considers that, he or she doesn't have any subjective faults, in this situation, would be required to bear burden of persuasion. In this thesis the main discussion is relative strict liability rather than absolute strict liability. The author has expounded and proved the existed strict liability in the criminal law in this country, through introducing theory of strict liability, and our combing to the disputes on strict liability in the academic circles of our criminal law, and is based on penal legislation, and tries to expound the rationality of the existence.This thesis is divided into 4 parts:Part-Ⅰ: Introduction of strict liability. In this part the disputes regarding to the definition of system of strict liability among the countries with English-American law systems, the countries with the continental law system and our scholars of criminal law have been expounded. The system of strict liability has been made classification from three directions and is based on the above, and clearly defines the basis of classification. Part-III of this thesis is to describe the presenting history of strict liability and its theoretical trace.Part-Ⅱ: Theory of strict liability. In this part, firstly the responsibilities distributing mode in the theory of strict liability has been obtained through expounding and proving burden of persuasion, and further expounds and proves the relationship between objective burden and presumption of innocence, which is persisted by theory of strict liability and traditional criminal theory, the results show that, responsibilities distributing of strict liability does not conflict with traditional criminal theory. The theoretical base and value for the system of strict liability have been expounded and proved in Part-III and Part-IV.Part-Ⅲ: The strict liability in our criminal law. In this part, through contrasting with the disputable views on strict liability in our academic circles of criminal law, the result shows that, our criminal law exists the application of system of strict liability indeed.Part-Ⅳ: Rationality of the applicative strict liability. This part takes possession crime as example; it tries to expound rationality of our criminal law applying for strict liability.
Keywords/Search Tags:Strict Liability, Presumption of Fault, Upset Burden of Proof
PDF Full Text Request
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