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On Offense Of Joint Negligence

Posted on:2010-11-03Degree:MasterType:Thesis
Country:ChinaCandidate:Y LiFull Text:PDF
GTID:2166360275960466Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
For long time ,the problem of the offense of joint negligence is always endless discussed domestically and abroad. According to different positions,scholars have three kinds of assertions, including affirmative theory, negative theory and restrictive theory. And because of suffering the different theory, all countries lawmaking have different positions. The view of the most legists in China ,as well as in practice, is a negation of the offense of joint negligence. However, with the development of our country's industrialization, high-tech and extensive application, the phenomenon of the offense of joint negligence is increasing. Because the current criminal law stipulates" Two persons or above who have committed an unpremedicated crime will not be charged with joint offenses, and they should be punished individually according to the crime they have committed respectively." This makes the offense of joint negligence is not sentenced exactly and can't suppress this kind of crime. Traditional crime theories can't explain this reasonably. According to this, the writer holds that the offense of joint negligence should be included in the system of joint crime in our country, at the same time, basing on the consideration of the crime suppression, the offense of joint negligence only includes the joint negligence principle offender. Based on the theory and practice of the offense of joint negligence in domestic and abroad, the writers studing the basis for the establishment of offense of joint negligence. The thesis holds the view of acknowledging the offense of joint negligence, considering the defenition of the offense of negligence, conditions of establishment of the joint negligence offence, the criminal responsibility of the joint negligence and so on. Based on the analysis of our criminal law on the joint offense, this thesis takes some legislative suggestions. We should not tenaciously stick to our theories and institutions but adjust them to pace of social development and requirement, therefore to perfect the system of joint crime in China.This thesis amounts to more than three million words,and includes five parts:Part one: A summarized account on the problem of the offense of joint negligence. This part is the theorical foundation of the full text, introducing the different theory of the offense of joint negligence, the lawmaking and theories of present research in our county and other countries, the opinion to the offense of joint negligence of the author, and the offense of joint negligence is different from joint offense with respective thinking. This thesis combines the analysis of three views about the issue in the field of theory, including acknowledging joint negligence, un-acknowledging joint negligence and restrictively acknowledging joint negligence. Different countries' law choose different attitude on this issue. The writer chooses the attitude of restrictively acknowledging joint negligence based on analysing the default of acknowledging and un-acknowledging joint negligence, futhermore the offense of joint negligence only includes the joint negligence principle.Part two: The basis for the establishment of the offense of joint negligence. On the foundation of the theory and practice proving the establishment of the offense of joint negligence is reasonable and practical. By analysing the essence of negligence crime and joint crime, this thesis discusses the establishment of the offense of joint negligence. Meanwhile, it also talks about the necessity of affirmation of joint negligence crime in real society.Part three: The definition and conditions of the offense of joint negligence. This part discusses the definition and conditions. Based upon the analysis and comments of different definitions of the subject matter, the thesis brings forth its own definition-the offense of joint negligence refers to that two or more actors or units jointly produce a harmful consequence due to the failure of fulfilling their duty. In the final analysis, a conclusion has been reached that four conditions are required for the establishment of the offense of joint negligence. By analysing object's action, the writer thinks that the the offense of joint negligence shouldn't include the negligent instigation and helper.Part four: The criminal liability of the offense of joint negligence. According to the writer, the principles of the criminal liability of the offense joint negligence are the total liability, part action takes whole obligation and the principle of separated treatment. Meanwhile we should consider the result, the degree of unfulfilling their duty and the behavior influencing the result in order to determine their liability.Part five: The legislative proposal of the offense of joint negligence. In this part, the writer proposes the feasible legislative suggestion, bringing the offense of joint negligence into the joint offense, and giving the concept and scope of the joint offense.
Keywords/Search Tags:The offense of joint negligence, The basis of establishment, Joint duty of care, Criminal liability
PDF Full Text Request
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