Theory Of Negligent Joint Principal Offender

Generally, we understand "joint principal offender" as the plural perpetrators injoint crime. The problem of the negligent joint principal offender is, if pluralperpetrators are treated as joint crime or a number of commits at the same time whenthey base on common fault mentality, implementation of the common behavior,andlead to criminal consequence.For a long time, scholars have positive and negative views about negligent jointprincipal offender. In the mainland criminal law theory, the different understandingsof the nature of accomplice lead to different attitudes of negligent joint principaloffender. The criminal law of our country clearly provides that joint crime refers tointentional crime. So, most of the scholars in our country hold negative attitudetowards negligent joint principal offender in hermeneutics theory, but in legislationtheory, some scholars have their own positive reasons.Considering all kinds of views, the problem of the negligent joint principaloffender is concerned with questions about the formation of the common behaviorand common attitude, and the root of this problem is due to the differentunderstanding of the nature of accomplice and negligent offense. About theunderstanding of negligent joint principal offender, scholars have common thoughtway: different understanding of the status and contents of the duty of care, lead to thedebate of the basis of punishment about negligent joint principal offender, and thisdebate reflect different stances of the nature of accomplice.Scholars of the mainland criminal law system generally believe that the contentof duty of care include duty of result forecast and duty of result evasion. Scholarswho based on different positions of the status of duty of care, interpret the content ofthe duty of care. Some scholars think that duty of care is the essential characteristic ofthe negligent joint principal offender, but other scholars believe that duty of care justis one of the conditions of the negligent joint principal offender. Besides, somescholars don’t disagree with duty of care, they explain the negligent joint principaloffender from the perspective of that common behavior objectively cause profitviolation.(This form opposite positions between the theory of duty of the care and thetheory of behavior causing.) How to define “common” in common duty of care?Some scholars think paying attention to his/her own behavior is enough, but otherscholars think the content of duty of care includes paying attention to his/her own behavior and the behavior of others. We can see, there are four theories of theessential characteristic of the negligent joint principal offender, including behaviorcontrol theory, common meaning subject theory, the theory of criminal commonnessand the theory of fellowship in act. There are two theories of the essentialcharacteristic of negligent offense, including theory of old negligence (which claimidentifying negligent crime from the aspect of liability) and theory of new negligence(which claim identifying negligent crime from the aspect of constitutiverequirements). Problems caused by different position include whether establish thenegligent joint principal offender, what is the establishment basis of negligent jointprincipal offender, how to define common behavior and causal relationship, and howto confirm the subjective attitude.The common thinking in China’s criminal theory acknowledges the concept ofthe results predicted obligations. The common thinking consider that in the case ofactors should be foreseen and did not foresee, they did harmful behavior blindly, anddid not take the necessary precautions to avoid the results. In this case, actors haveduties of result evasion. So, the content of duty of care includes duty of result forecastand duty of result evasion. We can explain the negligent crime from the perspective ofa duty of care.The problem of negligent joint principal offender is the status of duty of care.But under the premise of theory of partial co-crime, the establishment of accomplicedoesn’t just consider the effect between behaviors, but consider the effect of peoples’different mentalities. The feature of negligent joint principal offender is actors’mentalities, which is different part from joint crime intentionally. In the aspect ofobjective behavior, intentional common act is as well as contributory negligentbehavior. In understanding the nature of negligent joint principal offender, we shouldfind its own specific characteristics. From the level of subjective mentality, thinkingthat the nature of negligent joint principal offender is breach of duty of care isappropriate. The common thinking of criminal theory stand crime constitution modeinclude four elements, and if duty of care is considered as one of elements, duty ofcare will status on the embarrassing situation---hard to explore the relationshipbetween behavior/mentality and duty of care. If duty of care is considered as thecure of negligent joint principal offender, it should not be considered as an element,but should be reflected in common behavior and mentality. Different stands about thenature of duty of care cause this problem: how to form a common relationship. Ifduty of care is considered as paying attention to his or her behavior, they will ignorebulk property of work and their common responsibility of the result of the work. So,duty of care should not be considered as paying attention to his or her behavior, but asduty of the overall work. To negligent joint principal offender, the behavior control theory can’t explain“who control” in particular case; common meaning subject theory bases on the ideaof collectivism, but tends to fall out of the principle of individualism. Obviously, thetheory of fellowship in act ignores a problem: an accomplice to each other isn’t onlythe effect of acts, and the psychological effect. Of cause, the traditional theory ofcriminal commonness has some shortcomings. So, now more and more scholarsadvocate the theory of partial co-crime. They insist that when two or more personsjoin in committing crimes, if their behaviors have some overlap in the nature, it willestablish a joint crime in the limits of coincidence. This view conform the needs ofthe judicial practice in our country, and is reasonable.In conclusion, I think that we should base on the theory of partial co-crime, andconsider the duty of care as the core of negligent joint principal offender (punishmentbasis). The status of duty of care should not be putted as one of the conditions ofnegligent joint principal offender, but be putted as a fundamental theory, and puttedcarry out to all established conditions. The nature of negligent joint principal offenderis breach of duty of care, the content of this duty include paying attention to his/herbehavior, and paying attention to others’ behaviors (the overall work). According tothe theory of crime constitution in our country, there are some established conditions:the characteristics of the objective---common violation of a duty of care, thecharacteristics of the subjective---contributory negligent mentality, two or more jointtortfeasors and legal results.