A Study On The Offence Of Joint Negligence

China national criminal law the 25th stipulate:"Joint offence is two or more person joint intentional offence. A negligent crime committed by two or more persons should not be punished as a joint offence; what they should be punished according to what they commit."The stipulation explained our national criminal law is restricted in two person of above joint intentional offence when prosecutes for their criminal responsibility according to the joint offence, the joint negligent offence is not the joint offence. The traditional criminal law theory also believes that the joint negligent offence lacks the meaning contact what the joint offence needs, is impossible come into existence. But along with modern society's development and progress, social division of labor even more close, social cooperation even more close, the crime shape also become more complex and diversification. In that case, the situation two or more person commit crime based on common negligence is more and more. For this, it cannot manifest the significance of"joint ", also achieves the punishment works as its crime in the discretion very difficultly, but also has restricted the fundamental research further development if all is punished defers to the independent crime. So it is necessary to study the joint negligent offence and enables it finally to become legal stipulation.This paper is divided into four parts:The first part, a generalization of the joint negligent offence, enumerates the theory about the joint negligent offence, the vertical legal regulation, the legal precedent, and has an evaluation. The Chinese and foreign criminal law theory obtains two kinds of conclusions: affirm or deny in the joint negligent offence, simultaneously, also some scholars advocate affirming it conditionally or eliminating it. The scholar which definitely mostly to base on the saying of joint behavior that the essence of the joint offence is several people realizes respective criminal intent according to the common behavior, therefore the joint negligent offence may establish; But some scholars also affirm the joint negligent offence in the standpoint of the saying of joint offence, one of its viewpoint is"the saying of the joint duty violates together "; In addition, some scholars proposed the theory of joint negligent from the essence of negligent. The scholars who deny it mostly are the holder of the saying of joint offence. The saying of joint offence emphasis the meaning of implements specific crime together, so it is necessary for the criminal offender to have the joint intentional such as understanding to the result and admitting it. So the joint offence should be restricted in the intentional crime. Some scholars also deny it based on the saying of common meaning subject. The scholars who affirm it conditionally only admit the joint perpetrator but deny the joint negligent instigator and joint negligent particle offender. The representative which holds the saying of eliminating it is Chen Jialin who is our country's scholar. He thought does not need to establish the concept of common duty; it should be carrying on as negligent independent offender by a certain principle for the so-called joint negligent offence and such similar situation.The second part, the foundation of the joint negligent offence, carries on the analysis to the function of the joint offence system essence as well as the essence of the negligent offence separately and investigates the foundation establishment theory of the joint negligent offence. The most important function of the joint offence essence is to resolve the problem of several doers undertaking the criminal responsibility when they commit a crime at the same time. The essential theory of joint offence is not the theory of joint intentional offence. The essential theory of the joint offence certainly does not pay great attention to the subjective aspect of the crime. So the joint negligent offence should exist in the system of joint offence. The essence of the negligent offence lies in doer who have the attention ability but not practically to fulfill the attention duty and cause the result of endanger society. What should be denied by the criminal law in the negligent offence is the objective attention duty when commit a crime. So the joint negligent offence is probably established when two or more doers have the common attention duty and cause the illegal result.The third part, the ontology of the joint negligent offence, has a Summary and induction on the concept, scope of establishment, condition of establishment to the joint negligent offence. The joint negligent offence refers to the offence shape which two or more doers cause the illegal result when they have the common attention duty and disobey it because of the joint negligent behavior. The joint negligent offence should be restricted in the joint perpetrator. The joint negligent instigator and joint negligent particle offender should not establish. The establishment of the joint negligent offence must possess the condition of body, subjective, objective simultaneously and comprehensively.The fourth part, the responsibility theory of the joint negligent offence, expounds the principle how the joint negligent offence sums up its criminal responsibility and the factor which affects the doer's criminal responsibility. The principle of the joint negligent offence sums up its criminal responsibility should divide into three levels, namely the first level, the principle of integrating the aspect of subjective and objective, Second level, the principle of common responsibility, Third level, the principle of difference responsibility. The factor of affecting doer's criminal responsibility mainly refers to the behavior's social harmfulness, doer's dangerousness of the person and its effect in harmful result when he commits a crime.