The Study Of The Problem Of The Divide Of Indirect-intention And Over-self Confidence Faults

The difference of indrect-intention and over-self confidence fault in fault form was called one of the most difficult and disputable questions in criminal law by Welzel, German criminal law scholar. It is an extremely challenging research subject for most criminal law scholar in criminal law theory.The legislative mode of tolerance was adopted in our country criminal law fault form theory, and revealed the essential difference of indrect-intention and over-self confidence fault in will factor. But in judicial practice, By our Tong said, we can prevent indrect-intention and over-self confidence fault easily from those which the actor rely on sure advantage in objective, take some measure that prohibit the result happens, no matter how know"interfere"and"redilies believe prohibition in typical case. But in atypical case, when the perpetrator to avoid the harm results to the subjective desire to remain in the mind of completely, and didn`t outside into any objective behavior, and is purely a case of heart activity,Because of its emphasis on searching for the Psychology state of"the gray area"between the unknown indrect-intention and over-self confidence fault on the Psychology, and it is difficult to distingish between indrect-intention and over-self confidence fault. In the judicial practice, when people analysis to determine the fault form in some difficult cases and some accusationsly by current fault form theory, it is difficult to distingish whether the person`s fault form is an indrect-intention or over-self confidence fault. In the legislation, two phenomena will be appeared that certain crimes will have both forms of intentional fault and negligence in the same law. But it goes beyond the traditional Chinese theory of the interpretation of the form sin, it is a strong challenge to the current sin`s form theory, and it is a new legal phenomena in China`s criminal law.Discove problem and solve it. This paper tries to reference all times penal theory`s experience of solving the problem of indirect-intention and over-self confidence fault and proposed the third sin form"rashlessness"on the base of our traditional sin theories, in order to resolve judicial practice difficulties. And demonstrated systematically the rationality and feasibility of rashlessness as our theory of criminal law in a new sin forms.Except the preface and conclusion , this article divides into four parts .The first part: The origin of the problem. In this part, at first the writer have made an introduction,and then analyzed and compared about the general theory of the current fault from of our county, and put forward open to say fault theory and real contradiction on this basis, Although we can get very much clear bewteen the indirect on purpose with readily believe circle of fault in theory, but it is difficult to distinguish between its in some specific difficult cases.The second part: The overview of the research of the divides of indrect-intention and over-self confidence fault.In this part, the writer have reviewed the development course of the ancient fault theory of our country at first, and learn experience in legislative and judicial from ancient China and foreign civil law,common law in dealing with the divide of intentional and the credulous.And then analyzed and compared with the new theories,typical issues of our moment scholar in the distinction between intentional and the credulous.There are mainly"Strict liability","More than the element of the objective","Consistent sins". And pointed out the deficiencies and the office we can learn in the commentary.The third part: The thinking of the problem of the divide of indrect-intention and over-self confidence fault. On the basis that the above compares and draws lessons from , the writer agree,"compound from theory of the fault"that professor Chu Huai Zhi put forward relatively. Through serious and careful thinking and debate, I have analyzed and compounded profit and frand of the fault theory ,find the defect that this theory exists: As with the single fault from ( include four types of two kinds) on purpose ( including ? ) ,but none of concrete reality that the operation can be used name .The fourth part: The settlement of the divide of indrect-intention and over-self confidence fault. In this part, the writer bases on the basis of relatively drawing lessons from the thinking and scheme with circle to readily believe fault on purpose in terms of legislative theory: It is indirect with the foundation of readilying believe the fault on purpose to keep the traditional fault form ,use traditional fault theory unable circle divide ,at indirect on purpose with gray area to readily believe fault ,introduce the third kind of fault boldly-"Rashlessness". Propose four types of three kinds: on purpose ( indirect on purpose and on purpose directly ),rashness, theory idea of fault ( readily believe the fault and negligence fault ) so the indirect to divide into issue may be easily solved with circle to readily believe fault on purpose , the idea which was proposed in this paper not only often move the weapons but also plump the oretical system of current fault of our country, and not pursue the perfection with formal theoretical system but realized the fairness that is declared guilty on the measurement of penalty.