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Study On Strict Liability System In Criminal Law

Posted on:2012-08-28Degree:MasterType:Thesis
Country:ChinaCandidate:R M QinFull Text:PDF
GTID:2216330338963985Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
strict liability system has a bad impression in our criminal law system, being placed into the blind angle of the theory, becauses it not only omit the proof of the fault of the mind,which not only violate the basic principle of the criminal law, but also don't accord with the crime constitution theory. one professor once pointed out:as a criminal justice system, strict liability is peculiar to the Anglo-American law system, and crime constitution theory in continental law system reject the strict liability. The theory has excluded strict system, it is impossible for its judicial application, therefore, strict liability in our country has been seen as unique legal culture of the Anglo-American law system. But in practice, we found presumptive fault in criminal responsibility identification is being constantly applied to, and presumptive fault is one of the important shape of strict liability. Dose the theory hase problems, or judicial practice has defects, and where will the strict liability system goes, with these questions, I start the research. This passage include four parts besides the preface and concluding remarks.Part 1:The general overview of the strict liability. Firstly this part trace the history of the doctrine of liability fixation --- from the consequence liabilty to the subjective liability and fault principle, strict liability is used to breakthrough the fault principle for the risks in the social. That reflects the needs of the social defense and the expansion of the criminal law function. Secondly, this part introduce the different definitions of strict liability, summarize the development and evolvement of strict liability connotation, and conclude the connotation in this passage.Part 2:the reasonable basis of the strict liability system. Firstly, this part describe the realistic background in the risk socity, the needs to regulate the socity and consider the litigation economy, which are the realistic basis. Secondly, this part introduced the theoretical explanations of strict liability of the scholars,which are based on different theories. Then the second part points out that nobody can avoid the relationship between strict liability and fault principle when he is demonstrating the legitimacy of strict liability. At last the second part gives the theory basises of the strict liability including the relationgship between strict liability and fault principle and the development of the function of the criminal law.Part 3:The classification investigation of strict liability in diffrerent parts. Firstly, this part inspects the applicable scope of strict liability, the justification and development trend in common law context. The development of strict liability appears different Characteristics in British and America criminal theories,and good faith defense has been used widely in the coutries of the Anglo-American law system. Secondly, this part investigate the reasons of the strict liability being snubbed in the continental law system country and the ways to remedy.We find the strict liability has been used in Japan, France, Italy and other countries concentrating on the crimes about environmental protection, drug and public safe. Finally, basing on a summary of the development of the strict liability, we find that though the strict liability did not get the accepment from the continental law theory, its connation has been admitted partly, we can find the signs of strict liability both in Anglo-American law systerm and Continental lagal systemPart 4:Our introspection on strict liability.Firstly, this part explains whether strict liability can be admitted by our criminal law. Strict liability has its existence basis as the exception of our crminal law principles.Secondly, the fourth part concretely analyzed whether the crimes inclouding the crime of huge unidentified property, possess crime,crime of having sexual intercourse with a minor, the crime of huge unidentified property, embody strict liability. Accounting analysis we find that strict liability exists in the practice,though it was questioned in our theory. The practice has changed, the theory should also make some corresponding.Lastly, this part puts forword concrete suggestions on the application of the strict liability, including partly accept the system by clerely fix the fault-presuming, put the discretionary power in to effect, ensure the rights of defense and others.Through those measures,we can prevent the abusement of the system.
Keywords/Search Tags:strict liability, risk society, fault principle, principle and exception
PDF Full Text Request
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