Study On The Strict Responsibility In Criminal Law

Strict responsibility, regardless of takes one kind of abstract deductive the theory, one kind of concrete operation criminal law system, is always following the individualism and the institutionalism debate, the repel and the compromise. The individualism initiates individual standard, emphasized the author right, in the subjective crime model construction, emphasized the author to harms the behavior to have"the innermost feelings wickedness"which the harm result has and"prohibition wickedness", namely the psychological responsibility and the standard responsibility unification, and strengthens subjectively wickedly in the crime recognition decisive status, persisted"does not have the responsibility namely not to have the crime"; Institutionalism initiative society standard, emphasis public and social benefit, in subjective crime model construction, emphasis behavior itself risk and to public welfare harm feasibility. In the crime recognition, desalinates the crime, emphasizes the absolute responsibility - - so long as the prosecution side proved the defendant had the legal behavior or creates the legal result, the court has been possible to determine guilt the punishment, did not allow the defendant to propose any defense reason. Extreme individualism and extreme institutionalism, because of it"the extreme", in the crime model construction, either persisted the subjective crime principle, does not become less crowded, certainly without exception; Either in the insistence specific crime, does not need guilty: In the legal procedure, controls the side not to need to prove the crime, debates Fang Wu to defend the reason. This article opposed in the crime question the extremism, the limited affirmation strict responsibility system in our country criminal law being suitable, picks the relatively strict responsibility standpoint. The strict responsibility relativity, mainly manifests in two aspects: One is the strict responsibility crime scope is relative, is suitable in the public welfare oriented crime and few moral crime; Two is the strict responsibility crime is not separated from the subjective responsibility the track, the permission defense reason existence, belongs to the mistake estimation strict responsibility.This article constitutes by four parts, in which fourth part for this article key part.。The first part is the strict responsibility outline. First was simple outlined the strict responsibility historical path, pointed out the strict responsibility was just when is prosperous in the Britain and America state economy development the time, embarked one responsibility from the protection society and the public benefit which formulated. Next has carried on the analysis to the strict responsibility meaning from monism and the pluralism two angles. Did monism strict responsibility mainly whether there is crime say, the not subjective crime or the subjective crime said not explicitly, the subjective crime concrete form said not explicitly, did not consider the subjective crime said, presents evidence the responsibility absolution to say several theories, but the pluralism strict responsibility is carries on the multi-level divisions, the multi-angles of view to the strict responsibility grasps, thought the strict responsibility is refers in certain specific crimes, the legal responsibility which as the crime constitution important document the legal rule does not establish when crime undertakes by the crime person subjective aspect mistake; Or in other certain specific crimes, in the law explicitly had not stipulated the crime subjective important document in the situation, permits the accused person certificate subjective mistake being short of, but in is unable in the situation which proved to estimate its mistake undertakes legal responsibility.The second part is the strict responsibility existence rationale and the reality basis. First this part in detail introduced the scholars from are different the strict responsibility rationale which proposed angle of view of in the tradition legal responsibility theory, including"the risk responsibility theory","the compensation responsibility theory","the harm prevents possibly theory","the social welfare theory". Next pointed out the effective prevention infringement public good behavior and the increase lawsuit efficiency is the strict responsibility existence reality basis. The near modern society, the industry and commerce is developed, the enterprise activities same public welfare relations are day by day close, simultaneously appeared some to have the crime to the public which but the very big harm the criminal intent proved with difficulty, if the criminal intent took the crime constitution the essential criminal intent took the crime constitution the essential condition, often could cause the defendant to escape the penalty, caused the law to exist in name only. The strict responsibility is suitable can enable this kind of crime to obtain prompt processing, thus security security, social.The third part is the strict responsibility in two big legal system practices. In English and in the Hong Kong criminal law strict responsibility crime many with the maintenance social order, the protection public interest concerns. Strict responsibility crime being suitable got up the positive role in the maintenance society's good order aspect. In the English criminal law, the strict responsibility crime all has in the common law and the written law manifests. The Hong Kong criminal law stipulated must take the strict responsibility the crime, majority is the quite slight crime. US has also stipulated the strict responsibility crime in the legislation. The mainland legal system country criminal law theory believed generally that, the subjective crime is constitutes the crime, the burden legal responsibility necessary subjective foundation, therefore does not acknowledge the so-called strict legal responsibility. Regarding some subjective innocent or the crime unclear, on objective has created the serious harm behavior, integrates to the administrative law category, adjusts through the administrative law.The fourth part is to the strict responsibility the elaboration which does in our country's utilization, this part is the this article key part. First gives an explanation to the strict responsibility in our country criminal law debate, and proposed the author viewpoint. Thought establishes the strict responsibility in our country criminal law is the rational boots, mainly thought our country's criminal law theory and the legal rule basically can contain the strict responsibility: The strict responsibility conforms to our country crime criminal law to decide the principle; The strict responsibility and our country's hosts and visitors observe a person's face the unification to turn over to the responsibility principle and the crime constitution theory are not repel completely; The strict responsibility has manifested the criminal law goal; The strict responsibility and our country's Law of Criminal Procedure does not conflict. But should not exist about the strict responsibility in our country criminal law the reason then mainly has: The strict responsibility system establishment can violate the criminal law to be just; The strict responsibility system can destroy our country crime constitution the reasonable construction, creates the crime constitution theory the confusion; The relatively strict responsibility system has violated the innocent estimation principle; The British and American legal system country stipulated the overwhelming majority strict responsibility crime, in our country only thought is the general administrative illegal activity or the civil illegal activity. But the author thought that, Formulates and is suitable the strict responsibility system to conform to the current social situation and the economic situation need to develop; Formulates and is suitable the strict responsibility crime to conform to our country criminal activity legislation, the judicial need; In our country present criminal activity legislation and the judicature, already had the strict responsibility actually, if allowed them to drift away outside the criminal law theory, or explained farfetched with the traditional crime responsibility, the might as well carried on the system cleaning up to it, acknowledged the strict responsibility perfectly justifiable. Simultaneously needs to point out, author thought the strict responsibility being suitable is one kind restrictive, namely one relatively strict responsibility being suitable. In this foundation, the author the strict responsibility crime which thought to Our country Present Criminal law Middle school has carried on the analysis judgment, thought in our country criminal law utilizes the subjective crime not explicit strict responsibility is reasonable, also is feasible. But also must to its stipulation strict suitable condition, namely have to satisfy the following condition: Only is restricted in the harm public security, destroys the market economy order, the destruction natural environment and so on few crimes; Is only suitable for the case which based on the case nature, the crime form on objective determined truly with difficulty; Is suitable the strict responsibility the crime, the legal punishment should be light。...