Establishment Of Strict Liability In Sino Criminal Law

Strict liability is a special kind of doctrine of liability fixation in Anglo-American criminal law. The theme explores strict liability through detailed illustration of cases concerned strict liability in Anglo-American criminal law, discusses its background and development its history, clearly defines its connotation, finds out its rational reason for existing, clarifies the process of its operation in judicial practice, and reassure its value in litigation. The author believes that there is a situation embodied as relative strict liability in the development of practice. In essence, strict liability can be briefly concluded as constructive fault liability。This type of strict liability was quite different from the absolute liability in which therewas no defence.But in strict liability,mens rea was not be required.In fact there was the presumption of mens rea that if there is any doubt over whether an offence require mens rea , it should be presumed that it does .Then developed the system that the accused was able to give evidence on his own behalf . In my opinion , strict of liability should contained both of the system that the accused was able to give evidence on his own behalf and the presumption of mens rea .And the principle of control which was proposed by Douglas.N.Husak in Philosophy of Criminal law was very important to strict liability . Through discussing the specific background of legislation in China, the author thinks that relative strict liability can be involved in our criminal law and criminal procedure law.The theme can be divided into three parts: Part One takes the historical evolution of strict liability as logical start, it aims at finding its original state in Anglo-American criminal law; several kinds of definitions on strict liability contribute to the explicit definition of strict liability, and it is thought that strict liability is a kind of criminal liability which is regardless of subjective fault. That is to say, once the action fell into the law's regime or resulted in a certain situation which law regulated, then this action can be sued on which baseed the presumption of mens rea .and the asscude could able to give evidence on his own behalf to make sure that he or she was innocent. On this base, the difference among strict liability and absolutely liability was clarified. And then the theme deeply explores the theoretical basis The theoretical basis of strict liability is illustrated according to the perception of socieology, psychology, and legal philosophy. To grasp the marrow which strict liability involved, and explain the rational for the emergence and development of strict liability in the special situation of Anglo-American law system. To make sure that we could kown the conception of strict liability the theme enlisted some defense of strict liability include legitimate point of defense and"good faith defense"."Good faith defense"refers that when the prosecuting party sued in strict liability, the defendant is permitted to prove the absence of subject fault reasonably and faithfully, if he or she can convince the jury or judge, then he or she is free from guilty. This expresses that strict liability is developing from extremeness to rationalism, companied with revise. Subsequently, the author enumerates the sorts of strict liability. One of them is relative strict liability. It is believed that nowadays the character of strict liability is relative, and this is the trend of historical development. We can have explicit and deep sense of the real definition of strict liability in Anglo-American criminal law through the interpretation of this part.The Second Part of the theme discussed the relationship between liability and the construction of legal institution in china . Through discussing the specific background of legislation in China, the author thinks that relative strict liability can be involved in our criminal law and criminal procedure law . There were four reasons : the aim that building a hamonious society need strict liability for its ability of achieve the integratin of efficiency and equality ; to meet the inevitable demand of theory in our Criminal Law need establish strict liability in the Criminal Code and make sure that strict liability was not against the principle of a legally prescribed punishment for a specified crime in legislation ; to overcome difficulties caused by the monorail system in legal institution of china. We had better to establish strict liability in Criminal Code;aim at the integration of our criminal legal system we should establish strict liability in our Criminal Code. The value of strict liability, its value embodies justice and social common interest, and its value pursuit is utilitarianism and litigant economy. If established strict liability in our criminal code there must be spicial value for example : the protection of human right , to promote the construction of a hamonious society .Part Three is based on part two to discussed how to establish strict liability in our Criminal Code .From the definition of the scope in application of strict liability in Anglo-American criminal law we can abtian some experiences . The expeiences were good for us to constrct the scope in application of strict liability in our Criminal Code . By analyzing the specific legal background in China, relative strict liability is assume to be contained in our criminal law, and will not conflict with the principle of adducing evidence and presumption of innocence. Afterwards, specific accusation in perspective, it is discussed if strict liability could exists in Chinese criminal legislation and judicature, and how to make it reasonable. These specific accusation include crime of illegally holding drugs, crime of holding a huge amount of property with unidentified sources, and crime of carnal knowledge of a child (under the age of 14). The judicial interpretation of the crime of carnal knowledge of a child etc .To prove strict liability can apply to us in some circumstances. So that both in the legislation and judicial practice, strict liability should establish , thus we should admit the relative strict liability, rather than let it outside the criminal law, or give strained interpretation with traditional fault liability. We should give the liability without fault with legal effect .These measures aim at guaranteeing the implement of law integrated, in case of some defendants suffering from the absolute liability. Strict liability must be restrict ,we will achieve the goal of restrict strict liability by legislation and judicial practice. we must restrict strict liability when the court decide if use it or not in judicial . And I hope the application of strict liability should be reansonable .The author also argues the reason for supporting strict liability to go on developing, and explains its present conditions. The opinion of strict liability is"on its way down"is refuted, even in the Anglo-American criminal law. Because different countries means different development situation, we can not treat difference as the same. Strict liability will exist for a long period and will be practiced in more and more countries.