Study Of Criminal Negligence In The Duty Of Care "

Article 15 of criminal law in China stipulates: "You should predict yourbehavior may endanger the society, if has not predicted because of negligence, orhas already predicted but cannot avoid, so that this kind of result happens, it is theunintentional crime." According to this definition, the crime fault has twocharacteristics:(1)The danger result that the actor may cause by one's ownbehavior should be predicted; (2)The danger result has not been predicted becauseof negligence or predicted but can not avoided. Because the criminal law hascaused and met a lot of questions in asserting the unintentional crime at present forthe simple regulation of the crime fault.For example, why should the actor predict?What is the foundation of the obligation? What are sources of the obligation? Whydoes the actor have the obligation to avoid the result? How to avoid the result?etc.Because notice obligation can conclude the predict obligation and the obligation ofavoid result, these problems are exactly problems that notice obligation will solve.Notice obligation is key point to establish unintentional crime. The researchthis question has already been relatively deep researched abroad contrast to China.No matter breadth and depth the research of the obligation still seem very weak inChina at present. But with the development of modern society, the danger of theunintentional crime is very serious.So using of law scholars' research results offault in China, and drawing lessons from foreign theory to improve the criminallaw theory of our country and instruct the practice of justice, it is significant.The first part is the generaliation of Notice obligation.The author mainlyexpounds the concept, content, characteristic of it etc. and compares toNon-performance crime. To deep analysis all kinds of opinions of the content ofobligation, we can draw the conclusion: Notice obligation is the duty that oneshould predict their behavior contingent danger result and prevent the result fromwhile implementing the behavior. Notice obligation should include predictobligation and result avoided obligation.The predict obligation refers to the duty topredict the result which endangers the society. Result avoided obligation meansone has the duty to avoid danger result. So I think this kind of theory is moreoverall and more rational. At present, it is accepted by most criminal law scholars, too.In the second part, the author analyses the foundation of Notice obligation.First of all, the new theory which the person who introduces at the development ofthe unintentional crime at present puts forward-Danger what be permited,Trustprinciple theory and Supervise fault theory and among the theories that relevant toNotice obligation; Secondly, it establishes the principle of Notice obligation, andon this basis of analyzing all kinds of views about practice principle,then we canknow the souroe of Notice obligation clearly.In the third part, the author introduces the historical gradual progress courseof the position of Notice obligation in the unintentional crime.Not only in thecontinent law but also in Roman law, Notice obligation occupies very importantstatus among establishing unintentional crime. That is to say, Notice obligation isthe essence of unintentional crime.In the last part of the article, the unintentional crime is established in thejudicial practice like this: Result endangeredâ†'There is Notice obligationâ†'Thereis Notice abilityâ†'Establish the unintentional crime.In the author's view, Noticeability is the prerequisite of the Notice obligation.Then the author disoasses theresult that assumed happened and the obligation conflict and Commonunintentional crime. Common attention is different from notice obligation in thegeneral unintentional crime. These questions are difficult problems asserted in thejudicial practice.Under the guidance that theory combines with practice and on the basis ofsummarizing other scholar's research results, this article tries hard to study themeaning of Notice obligation, the important position in unintentional crime, thefoundation of theory and practice and so on. From the exploration of a smallcriminal law theoretical question, we can know and define the unintentional crimebetter.