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Study On The Rationality Of Strict Liability

Posted on:2011-06-21Degree:MasterType:Thesis
Country:ChinaCandidate:C M XiaFull Text:PDF
GTID:2166360305457739Subject:Criminal Law
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Strict liability is a special responsibility attribution rule that originated from common law in criminal domain. Although this system has always been controversial, it is continuously improved and developed through the practice. It is not only a pre-existed legal phenomenon, but also a kind of criminal legal system, which has both the theoretical value and practical value. This thesis is based on previous studies, making investigation on the developing and changing process of strict liability system, clearly defines its connotation and the value basis. In addition, analyze the domestic theoretical controversy focus and summarize as well as argue with various academic viewpoints according to the criminal legislation of our country and the practice of judicature. Furthermore, making reflections on the rationality and necessity of the establishment of strict liability in the Chinese criminal law system, advocate to introduce strict liability appropriately, find the suitable development path in the criminal law theory, combined with our legal traditions and social reality. Use science legislative technique to minimize the the negative effects during the establishment and application of strict liability, as well as provide suggestions on the design of strict liability introduction in our criminal law system.The thesis mainly contains four parts:The first part is an overview of strict liability. First is an introduction of the origin and evolution process of strict liability. Through introducing classic cases to clarify the developmental context of strict liability, demonstrate the development process, which from initial, completely do not require mens rea, till exempting accuser's obligation of adduce evidence, at the same time giving defendant right to defense. Moreover, introduce the onus proof conversion and good faith defense, in order to indicate the gradual mollification process of strict liability. Secondly, through the summary and analysis of scholars'viewpoints, as well as the discrimination of related concepts, define the meaning of strict liability, which has been discussed relatively. And the definition should be: when the perpetrator implements specific hazard behavior, or in an illegal situation, or caused legal negative results, the law will presume the perpetrator have sin in one or more elements of the actus reus of the criminal offences. The accuser only needs to prove the existence of basic facts, then can investigate the perpetrator's criminal liability, only if the defendant can prove innocence in a subjective perspective. Last but not least, this thesis discusses about the theoretical basis and value basis of strict liability. The theoretical basis of strict liability is utilitarianism. Utilitarianism emphasizes the necessity and purpose of penalty, as social defense measure; advocates that the purpose of penalty is crime preventing and society defense. Strict liability is a choice of utilitarianism, which is chosen between utility and justice. When there is a conflict of interest, strict liability focus on protecting the interests of society as a whole. The entity value of strict liability is to protect the whole society's interests; procedural value is to improve litigation efficiency. Strict liability makes achieving the balance between justice and efficiency as the goal of continuous developing and perfecting.The second part is going to introduce the domestic theoretical controversy focus of strict liability, mainly concerns on whether there exists the strict liability in criminal law, and whether it is necessary to formulate strict liability. Regarding to the crime by the drunk in the general provisions of criminal law, criminal responsibility of principal offender and chief of the criminal group in joint offence, the author made analysis on some scholars'viewpoints, demonstrated that there is no related provision about strict liability in the general provisions of criminal law. Concerning on the statutory rape behavior involved carnal abuse, the crime of huge unidentified property, through the analysis of related judicial interpretation, perpetrator's subjective state and the constitutive elements of crime, the author considered that in accordance with the needs of judicial practice, the criminal law has given the acceptance and embrace to strict liability. The establishment of strict liability is indeed contribute to maintaining the vital interests of society, protecting the legitimate rights and interests of vulnerable groups, therefore, to achieve the goal of crime prevention more effectively, as well as improve litigation efficiency.The third part demonstrates that strict liability has its rationality and is able to be consistent with Chinese Criminal Law. In the condition of social and law aspects, the developing status quo of the society needs the establishment of relative strict liability to make up partial crimes, which the Criminal Law has badly regulation. During the process of the continuous development, perfection and evolution, there is alleviation in the theory of strict liability. It is the need for public welfare and could be accepted by public. The social influences what will occur after the establishment of strict liability could control all the unfavorable factors restrict through the scientific legislation and the strict procedures. Meanwhile, it is compatible between the strict liability and the basic principles and theories in China's theoretical system of Criminal Code. First of all, the applicable situation of strict liability already exists in the legislation and juridical practices in China. We should admit the relative strict liability to ensure the implementation of the principle of legality, rather than let it outside the criminal law theory, or give strained interpretation with traditional fault liability. Second, there is no paradox between strict liability and principle of"the unification of subjectivity and objectivity". In essence,"Presumption of fault"and"Burden of proof"of relative strict liability discussed in the thesis accord with the requirement of the objective and subjective principles of unity, as well as the special reflection in the criminal procedure of the principle. At last, the strict liability and the restraining criminal law consists finiteness, complementariness and economical efficiency are not contradict.The system design of strict liability is introduced in the fourth part. Either from the perspective of the litigation economy or the perspective of the value of fairness and justice, strict liability has certain rationality. Nevertheless, the passive effects which will be caused by strict liability should be taken into account, such as necessary restrictions should be carried out from the legislative constructions to juridical practices, in order to take a space in the framework of the Criminal Code theories. We should make clear regulation on the definition as well as precondition of application and restrictive conditions of strict liability. In criterion system of criminal law, the applicable scope of strict liability should be limited in the minority crimes, e.g. the crimes that difficult to distinguish the mens rea, violations of social and public interests and the special interests under high legal protection, and even if the Strict Liability is applicable in certain accusation, specific circumstances should be analyzed and detailed research should not be generalized. Specific principles should be followed in the punishment of criminal penalties on the strict liability. If necessary, the punishments are mainly in the forms of free short-term sentence and penalties, and according to the specific case, a degree of distinction can be set on the criminal penalties. In the procedural aspects, full defense rights are given to the accused, standard of proof suitable for the accused capability should be proposed and evidence relief system should be established.
Keywords/Search Tags:Criminal Law, Strict liability, Presumption of Fault, Rationality
PDF Full Text Request
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