The Elimination Of Misfeasance In Negligent Crime

With the development of economy and modern society, more and moresignificant harm caused by negligence appears. The frequent appearance of negligentoffenders in the daily life brings tremendous harm to the society. In theory, comparingwith the Intentional Crime, the research of Negligent Crime is insufficient. Referringto the foreign criminal law research, especially in Germany and Japanese CriminalLaw, the research achievements of the criminal law is ahead of what our country gainsnot only in the breadth but also in the depth. In the breadth, the research of crime isdivided into two categories which includes Intentional Crime and Negligent Crime. Inthe depth, the research of crime focuses on the different problems in Intentional Crimeand Negligent Crime. My paper will introduce the Elimination of Misfeasance’sanalysis in Negligent Crime, which plays an important role in recognizing whether thenegligent offender should be constituted a crime. If Elimination of Misfeasance exists,negligent offenders do not constitute a crime and do not need to entail any liability.Basing on the research actuality of domestic and foreign theories, this article analyzesthe essence of illegality (violate the Duty of Care) and the range and types ofElimination of Misfeasance. Allowed Dangers and The Principle of trust are peculiarto Negligent Crime, we demonstrate the application of both with practice in the hopeof giving positive examples for legal practice.This article has three parts, which consisting of introduction, main body andconclusion. Besides the introduction and conclusion, the article is divided into fourchapters, more than300,00words.Chapter I:the theoretical basis of Elimination of Misfeasance in Negligent Crime. This part mainly explains the essence of illegality and the concept of Elimination ofMisfeasance. We demonstrate the essence of illegality in Negligent Crime is violatingthe Duty of Care and negligent offenders are exculpated by elimination of the Duty ofCare.Chapter II: the existent source of Elimination of Misfeasance. This part mainlyanalyzed the scholars’ different opinions and comments about Elimination ofMisfeasance. In foreign countries, scholars have two kinds of disparate ideas. InGerman and Korea, some scholars deny the Elimination of Misfeasance in NegligentCrime while some scholars in Japan keep the opposite opinion. Through thecomparison of theory, we compare the Elimination of Misfeasance in Negligent Crimewith the Elimination of Misfeasance in Intentional Crime in order to analyze theparticularity of the Elimination of Misfeasance in Negligent Crime. Accordingly, wedemonstrate the rationality of the existence of Elimination of Misfeasance inNegligent Crime combing with the Art.13of the Criminal Legislation of People’sRepublic of China.Chapter III: the range and types of Elimination of Misfeasance. On one hand, thispart explains the types of Elimination of Misfeasance which is composed of lawground for Elimination of Misfeasance and Supra-law Ground for Elimination ofMisfeasance. On the other hand, this part also mainly explains the range ofElimination of Misfeasance which contains Self-defense, Necessity, Allowed Dangersand The Principle of Trust. In the aspect of Law Ground for Elimination ofMisfeasance, we state the circumstances of Self-defense and Necessity applying toeveryone and we make a common on the Necessary of the Intention of Defence(Necessity) and the Unnecessary of the Intention of Defence (Unnecessity).In theother aspect of Supra-law Ground for Elimination of Misfeasance, we state thecondition of application of Allowed Dangers and The Principle of Trust, which isparticular in Negligent Crime.Chapter IV: The application of Elimination of Misfeasance in judicial practice.The propose of this part is to make the Allowed Dangers and The Principle of Trustmore clear and operable as a model for the development of China’s Elimination ofMisfeasance.