Perspectives On Criteria For Evaluation To The Ability Of Foresight

Modern Criminal Law takes penalizing intended crimes as fundament and takes penalizing negligence crimes as exception. Therefore, it requires particular cautiousness when we are taking cognizance of negligence crimes. Especially when judging whether the perpetrator possesses the ability to foresee the legal harmful consequences, we have to acquire a criterion of reasonableness, besides,we ought to make every effort to neither violate the innocents nor give loose to the criminals through weakening the Criminal Law protection to legal rights. Thus the purpose of punishing the criminals and protecting the people are able to be accomplished. The paper takes judging criteria of the ability to foresight as key issue, begins with summarization of abilities to foresight, and expresses the author's perspectives——Theory of Standard Types of Men after reviewing a number of correlative theories existing in criminal law circle.The paper possesses three parts.The first part is the abstract of ability to foresight. In this part the author primarily compares the concepts of ability to foresight and then put forward his view that ability to foresight is actually the main reason composing the actor's unpremeditated crimes, and further considers the contents of ability to foresight is legal harmful consequences authorized by Criminal Laws. In order to enrich the cognition to ability to foresight, the author sorts ability to foresight according to various standards and then describes the relationship between the ability to foresight and some relative concepts such as abilities to attention, abilities to identification and obligations of foresight. Through the comprehension of ability to foresight, the author believes that ability to foresight is the collective condition to all negligence crimes.The second part is the abstract of criteria of judging the abilities to foresight. In this section, the author briefly describes several theories about criteria of judging the abilities to foresight in different nations, such as Germany, Japan and China. The Objective Theory refers to the Standards to Ordinary People, in which actor's ability to foresight is judged by ordinary people's ability to foresight.;The Subjective Theory, which is also called the criterion of actor considers actor's intelligence level and cognitive ability in specific time as the criteria to judge the abilities to foresight; Uniform Theory includes the amended objective theory and the subjective theory which is based on the objective theory. The former advocates to abstract some actors'foresights in the specific situation as different types and then to determine the actor's foresight according to these criteria. The latter believes that the judgments should base on the ordinary person's foresight and that this actor's level of intelligence at this time plays a decisive role; The unity theory, in determining the actor's foresight, not only considers the actor's own characteristics such as intelligence, knowledge, experience, etc., but also consider the conditions in which the behavior was made. We should combine both to arrive at a correct conclusion. All of these theories are reasonable, somehow, the defects of them are also clear. The objective theory could easier to wrong innocent people and indulge criminals; Actually, the subjective theory is confusing the criteria and the objects. It is one standard for one person and that means nothing at all. And this theory is not conducive to judge the foresight; The subjective theory based on objective theory is still the subjective theory. And it is useless for criteria of the Uniform Theory to put the conditions of objects into consideration. So the Unity Theory is also the Subjective Theory.The third part advocates the theory of standard types of men. In this part, the writer firstly nails down the substance of the criteria of judging the abilities to foresight, namely, the capabilities for human beings to acquaint and to estimate are limited and subjective. Actually, the process of judging the abilities to foresight is the progress that can deduce one person possesses the abilities to foresight. As the result of this process, one's abilities to foresight which The judicial branch of government cognizance can only infinitely approach yet can never reach his/her real abilities to foresight. When in a process of judging one's abilities to foresight, it is necessary to clarify the relationship among the principal parts, the criterions, the objects and elements in the estimation.Through the analyses of the criterions mentioned above, and the virtual acquaintance of the standard of the abilities to foresight, the writer brings forward"The Theory of Standard Types of Men "----according to one estate, what he/she is affiliated with, and to estimate one's the ability to foresight according to the everyman among him. To apply the theory of standard types of men expediently, the writer figures that when we confirm the genre of people three aspects should be taken into consideration, which are nature, biology and community roles. However those three factors play different parts in confirming negligence crimes on duty or general negligence crimes。Then the writer discusses the advantage of the theory of standard types of men over other relative criterions. Firstly, the theory of standard types of men is accord to the rules and the practices of acquaintance. Secondly, the theory surmounts defects in objective theory and subjective theory. Thirdly, the theory can estimate one's real abilities to foresight accurately. Fourthly, this theory is the only reasonable way to keep the balance between the fundament of protecting Legal rights and the fundament of responsibility.In the last part of the paper the writer will answer the doubts that may exist in querying the advantages of the theory of standard types of men. The theory will not lead to the imputation of order, in contrary, only by applying this theory accurately, can the imputation of order be avoided. In addition, the Theory of Standard Types of Men can not only apply to judging the negligence crimes on duty but also to general negligence crimes.