On "Causing Death" In The Criminal Law Of China

About the legislation on "causing death", the Criminal Law of China in1997incomparison with the one in1979has made some progress. It conforms to the objectivism’strend and reflects part requirements of the principle of a legally prescribed punishment for aspecified crime，which is propitious to give full play to the functions of protecting the legalinterest and human rights of Criminal Law. It also underlines the standardized requirements ofthe sentencing so as to achieve accurate conviction and sentencing. But there still exist manyshortcomings in five aspects including legislative system, subjective culpability, object ofcausing death, criminal object and penalty configuration. The imperfect present legislation notonly leads to the dispute among the academic field, but also causes chaos of judicial practicewhich raises the inconsistence of one crime with several crimes, this crime with that crime.The current theory of Criminal Law tends to probe correlative issues on "causing death" inspecific offenses solely and rarely elaborates systematically. As well, for the "causing death"provision in the same legislative article, theoretical fields have controversy. Thereforeanalyzing this legislation phenomenon deeply and intensively has its own theoretical valueand practical significance. The theoretical value lies in control over its internal linkages andinherent laws in order to lay the foundation for the next perfection after the systemicpectination of the "causing death" in our Criminal Law. The practical significance is thatlegislative changes could be targeted so as to guide the practical operation of justice and makeapplication of punishment uniform and harmonious by proposing a perfecting draft about"causing death" in Criminal Law of China.Except the introduction and conclusion, there are three parts:The first section is the systemic pectination of the "causing death" in our Criminal Law.Firstly, give "causing death" a general description according to our legislation as well as itssignification. Enumerate all the items what involve in the Criminal Law in1979and1997,besides, for having a general understanding of the legislative phenomenon, a brief comparisonand summarization is also carrying on. Secondly, from two different points of view, classify"causing death" in our country which can be divided into intentional type﹑negligent type﹑mixed type and single circumstance type﹑alternative circumstance type, so that one can master its basic theory from macroscopic view. And it foreshadows the correlative law forbeing completed aftertime. Finally, analyze the significance of Criminal Law and possess aprogressive significance, especially for the standardization of measurement of penalty.The second section systematically analyses the legislative situation of "causing death" inCriminal Law of China. This is reflected as follows: in the legislative system, currentprovisions are too many and loose; in the culpability prom forma, it isn’t clear that "causingdeath" is an intentional crime or negligent one; in object of causing death, it doesn’t makelimited the "people" of "causing death"; in criminal object, it doesn’t make a distinctionamong "resulting in serious human injury""causing death" and great loss of property andapplies to the same legal punishment; in penalty configuration, it shows some unreasonablestipulations. Through the analysis of these five aspects, it clarifies some criminal theoreticalissues existing in "causing death" and finds out the imperfections of this legislation in theapplication of judicial practice.The third section discusses the legislative perfection of "causing death" in our CriminalLaw in detail. Firstly, introduce the stipulations and reference experiences of "causing death"abroad. Here the article presents the relevant legal stipulations in some typical countries orareas, and those brightnesses that can be used as references for the legislative perfection ofour Criminal Law are summarized. Then illustrate the reference value of "causing death" inforeign Criminal Law, including its legislative system, subjective culpability, object ofcausing death, criminal object, penalty configuration and the covered crime areas, so as tobenefit the legislative perfection of our Criminal Law. Secondly, according to currentlegislative situation and theoretic deficiency discussed above, in combination with the relatedlegislative experiences in foreign countries, concrete perfecting thinking will be given asfollows: A. Perfect our legislative system. B. Specify the culpability prom forma. C.Accurately define the object of causing death. D. Make a distinction among "resulting inserious human injury"、"causing death" and great loss of property. E. Set a reasonableprescribed punishment. At last, in view of the legislative perfection conception above, it putsforward a corresponding perfecting draft systematically, and the current legal stipulations canbe revised from the following five aspects: A. Retain the major stipulative mode of "causingdeath" and provide them as negligent crime. Excepting some certain special regulations, thesituation of intentionally "causing death" should be embodied in the detailed crime ofintentional homicide,,while the situation of vocational negligently "causing death" should be embodied in the detailed causing death offense of vocational negligence. B. Distinct theobject scope of "causing death", and clearly define that the consequence of "causing death" isdue to the actor’s individual behavior instead of the victim’s suicide. C. Divide the situation of"causing death" from "resulting in serious human injury" and great loss of property, then setdifferent penalties. D. Adjust penalties configuration of some "causing death" offense andavoid sentencing too lightly or heavily, trying to make coordination and harmonization of thepenalty. E. Add a series of crime stipulation that is extremely easily causing others’ death,which is in the hope of making legislation of our Criminal Law more perfect and exercisable.