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Contributory Negligence A Crime Study

Posted on:2006-01-30Degree:MasterType:Thesis
Country:ChinaCandidate:E J ZhangFull Text:PDF
GTID:2206360155459365Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
People in the field of theory and legislation at home and abroad hold different views on whether the offense of joint negligence is a crime. Currently there are three views on this issue, namely acknowledging joint negligence, un-acknowledging joint negligence and restrictively acknowledging joint negligence. These views are respectively supported by the theory of joint action and the theory of joint crime. This thesis holds the views of acknowledging the offense of joint negligence and from this perspective the thesis probes and analyzes the attitudes towards this matter in legislation and theory at home and abroad. While advocating the research achievements of acknowledging the offense of joint negligence abroad, the thesis also brings forth its own viewpoints that all the actors in the offense of joint negligence should be principal offenders so as to jointly bear the criminal liability. In addition to the introduction, four parts (about four million words) will be needed for illustration and demonstration in details on the issue.Part one—the current situation about the offense of joint negligence in scientific research and legislation. The current situation on the issue in scientific research, the attitudes towards it at home and abroad will be discussed. The thesis combines the analysis of three views about the issue in the field of theory (namely acknowledging joint negligence, un-acknowledging joint negligence and restrictively acknowledging joint negligence), of the attitudes toward the issue in German, Japan, Italy and France the mainland of China and Taiwan. Based on the analysis, the thesis holds that we should learn from the achievements of the offense of joint negligence in theory and legislation abroad and 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.Part two—the basis for the establishment of the offense of joint negligence. This part adequately expounds the theory of the offense of joint negligence from the following aspects: the existence of the offenseof joint negligence, the judiciary need for it, as well as the theoretical and legal grounds of it. The thesis holds that we should acknowledge the offense of joint negligence and meanwhile such theory could bring scientific basis for acknowledgment of the offense of joint negligence in criminal theory and legislation.Part three—the theoretical structure of the offense of joint negligence. In this part the thesis analyzes the definition, constitutive elements, scopes and classification of the offense of joint negligence. 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 three conditions are required for the establishment of the offense of joint negligence.Part four—the criminal liability of the offense of joint negligence. In this part, after analyzing different views on this issue, the thesis explicitly maintains that —in accordance with the function of the actors or units in the offense of joint negligence, the actor or units should be categorized into primary and subsidiary offenders of joint negligence so as to bear the criminal liability. Meanwhile the actors' positions and functions in such cases should be considered into the determination of conviction and sentence, therefore to solve the issue of the offense of joint negligence scientifically.
Keywords/Search Tags:Contributory
PDF Full Text Request
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