Discussion On Duty Of Care In Criminal Law

With the development of technology and the changing of time, negligent crime rate increases year by year and the social harm is also increasing. Under new circumstances, considering the characteristics of crime negligence, we should reexamine the status of negligent crime in the legal system, and enhance our study on theories related to it. In traditional criminal law study, scholars tend to focus on intentional crime and negligent crime is often ignored. As the core of negligent crime studies, duty of care should be placed on top priority.The first chapter of the thesis is to define the concept of duty of care, in which its characteristics, theoretical base, and detailed contents will be illustrated. The elaboration on the definition, characteristics, and theoretical base will be general summarization of existing theories. On the base of duty of care, personal propositions will be raised, aiming at deepening the understanding toward theory about duty of care.Chapter two applies a pro-jurisprudence method, through which negligent crime theories will be studied in the civil law system. Section one is concerned with the evolvement of duty of care based on negligence, and categorizes it into three phases: emergence, development, and maturity. Section two has adopted German and Japanese criminal law as examples to explain status of duty of care in civil law system. On whether the violation of duty of care is the essence of negligent crime, this paper asserts to the affirmative views and provides personal explanations.Chapter three discusses duty of care in two aspects, the fulfillment and violation of it. Section one concentrates on the fulfillment of duty of care, which gives special emphasis on premises of such fulfillment. Section two talks about the violation of it, and the criterion on judging the violation would be studied. The author is affirmative to an objective approach and tries to amend it in the perspective of attentive ability. Later, we will talk respectively the duty of care in advertent and inadvertent angles.Chapter four introduces two principles closely related to duty of care theory: allowed dangers and the principle of trust .This chapter mainly talks about the concept, origin, and restraints of the two principles. At last, combined with judicial practice of"Sanlu milk powder case"and "arsenic poisoning case", we will analyze the judgment on violation of duty of care in two perspectives, hoping to provide some guidance to judicial practice.