Research On "Death Caused By Escape" As An Aggravated Circumstance

As an aggravated circumstance of crime of causing traffic casualties,“DeathCaused by Escape” is regulated in section133of china’s “Criminal Law”.“Severalissues about the specific application of law in the trial of criminal cases of trafficaccidents interpretation”(hereinafter referred to as “Interpretation”) was issued bySupreme People’s Court On November10th2000, which provide legal basics for theapplication of “Death Caused by Escape”. However some important issues remainunsolved. Such as, whether the crime of causing traffic casualties should establishedas a precondition of “Death Caused by Escape”; should subjective purpose of the“Interpretation” that “to avoid legal action” be considered when the escape happened;what is the subjective culpability of “Death Caused by Escape”; etc. Thosecontroversial issues lead to an applicable chaos in the judicial practice of “DeathCaused by Escape”. The situation of “Death Caused by Escape” is complex, in ourcriminal justice system, analyzing the applicable condition of “Death Caused byEscape”, defining the scope of “Death Caused by Escape” with combining normativeanalysis and practice has practical significance for the correct guidance of judicialpractice.The crime of causing traffic casualties should established as a precondition of“Death Caused by Escape”. It is consistent with the requirement of “Criminal Law”and “Interpretation” and it avoid the mistake of repeat appraising. When the firstaccident did not constitute a crime of causing traffic casualties, the perpetrator escapecaused the victim died due to lake of rescue, sentence to death by negligence oroffence of intentional killing, combined with its subjective culpability.On the objective aspects, the essence of “escape” in “Death Caused by Escape”is failure to perform rescue obligations, the object of offensive action is not includethe victim in second accident, and there is a causal relationship between the death ofthe victim and “escape”. As long as the perpetrator does not perform the rescueobligations resulting in death of the victim, recognize it as “escape”, this helps toprotect the safety of the victim. In judicial practice of perform rescue obligations, first, the perpetrator must have the possibility to perform; secondly, the performance mustbe effectiveness. If a second accident occurred in the process of escaping, twooffenses are independent. In judicial practice, if both of them established crime ofcausing traffic casualties, sentence to heavier punishment in the legal punishment ofcrime of causing traffic casualties; if the perpetrator’s subjective culpability has beentransformed into intentional, depending on the different circumstance, sentence toboth crime of causing traffic casualties and offence of intentional killing or the crimeof endangering public safety.On the subjective aspects, the subjective culpability of “Death Caused byEscape” must be negligence. Although “escape” is intentionally, but the perpetrator’ssubjective culpability on the death of victim must be negligence, the attitude to theoccurrence of the result is negative. Simultaneously, it is the requirement of thetheory of quantity of offence. According to careless negligence and negligence withundue assumption, the obligation of the foresighted result, the obligation of theavoidable result and other important factors should be considered in identifying theperpetrator’s subjective culpability in judicial practice.There is a need to meet the constituent elements of negative crime and unity ofobjective and subjective conditions for “Death Caused by Escape” transform intononfeasance offence of intentional killing. On the objective aspects, the perpetratormust have the malfeasance of nonfeasance, and its must equivalence to intentionalhomicide. This equivalence requires the perpetrator specific dominate the harmfulconsequence in reality. Not only the displacement escaping regulated in“Interpretation” section6complied with this condition, the simple escaping also cantransform into nonfeasance offence of intentional killing. When the perpetrator’smalfeasance of nonfeasance contains urgent and specific danger to victim, eventhough the perpetrator escapes simply, he is also equivalence to intentional homicide.On the subjective aspects, the subjective culpability turns to be intentional. Thegeneral simple escaping, less invasive, and there is a large possibility of other peoplerescue the victim, the perpetrator is not exclusive dominance to rescue victim, it is notequivalence to intentional homicide and can’t sentence to offence of intentionalkilling. At this time, even if the perpetrator’s subjective culpability on the death of victim is indulgence, because the boundaries between the culpabilities is not clear,and the evidence is in doubt, it can’t be definitively identified as intentional, and itsright that only retreat to undoubtedly negligent crime. In addition, according to themain culpability theory mentioned by Professor Zhou Guangquan,“Death Caused byEscape”, as an aggregated consequential offense of crime of causing traffic casualties,its subjective culpability must follow the main culpability, that the negligence oforiginal traffic accident. Therefore, the general simple escaping should still follow thecrime of causing traffic casualties “Death Caused by Escape” to conviction andsentencing.“Death Caused by Escape”, as an aggravated circumstance of crime of causingtraffic casualties, with analyzing the premise, condition, the objective condition,subjective condition, and the transformation to nonfeasance offence of intentionalkilling, the applicable condition and the scope of “Death Caused by Escape” will beclearer and it will provide some help for the judicial practice work.