Font Size: a A A

Study On The Negligent Perpetrating Act

Posted on:2015-01-10Degree:MasterType:Thesis
Country:ChinaCandidate:H T WangFull Text:PDF
GTID:2296330467454021Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
Professor Xu Yu-xiu of Taiwan once said that: in an era of science andtechnology is more advanced and human ability of grasping life is stronger, negligentconduct will become the normalcy of miss conduct. In a society which the regulatoryeffect is more effective, the major role in criminal phenomenon should be negligentcrime rather than intentional crime, in a society of advanced science and technology,laying considerable emphasis on negligent crime is a more performance. negligentcrime is far outweigh intentional crime not only in the aspect of the quantities of casesbut also the harm to living body of human being and property.hence, more attentionshould be attached to negligent crime.however, compared with intentional crime,negligent crime hasn’t gained high attention in china, especially we have ignoredstudying on negligent conduct, what is more, the affirmation of negligent crime injudicial application seems to fail to evaluate it sufficiently. This chapter, on thebackground of Germany and Japanese criminal law theory, regards the staticinvestigation of conduct theory as a starting point, will study negligent perpetratingact which dynamically reflect the realization of the process of the constitution ofnegligent crime in the presence of interaction between existence and specification andfinally, find a reasonable path for recognizing negligent perpetrating act. This chapter is divided into three parts.In chapter Ⅰ: We can’t do without the grasp of conduct which is regards as thebase of the concept of crime. This text believes that, the concept of general conductcan filter out actual acts that will be evaluated by the constitutive requirements, thenby the illegal elements, the responsible elements. And finally get the convicted oracquitted conclusion.Perpetrating act in the hierarchical criminal theory system of the continental lawsystem has its own characteristics and functions; it has the attribute of fact andevaluation appraised by the criminal law. Our traditional criminal theory doesn’tcontain the theory of conduct theory, and the concept of harmful conduct unified thetheory of criminal law, it not only confused the evolution criteria and the evolutionobject, but also resulted in contradictions within the constitution of crime, and itshould not become the norm of the act of constitutive requirements. At the same time,this text believes that the most important value of perpetrating act is to reflect therealization of the process of judicial application whether actual violating legalinterests can attribute to the perpetrator’s act dynamically. And show a dynamicalevolution system between evolution criteria and evolution object. This text concludesthat it is necessary to introduce the concept of perpetrating act to negligent crime.In chapter Ⅱ: The concept of negligent perpetrating act was the result of newnegligence theory transferred from the old theory in the continental law system. It wasalso related with the historical development of the hierarchical criminal theory systemand the dispute between the behavior of worthlessness and theoretical resultsworthless. The new theory centered on the duty of result avoidance advocates thatwhen evaluate the negligent crime, we should lay more attention to the illegal act.The essence of the negligent perpetrating act is that is the product of thehierarchical criminal theory system, hence we need to explore constitution ofnegligent crime of German and Japan. The author finds some representative system bycollecting and exploring some limited material related with constitution of negligentcrime of German and Japan. And makes some comment on them. By the study of thetwo types of constitution of crime, this text believes that they have the same platform to communication with each other, and negligent perpetrating act can be applied toour criminal system and doesn’t have any thought obstacle. The root cause of thedisagreement between the Individual negligence theory and the objective imputationtheory lies in the different conviction that subjective illegality determines objectiveillegality or the verse in the illegality theory. Here this text thinks that, when evaluatesthe negligent crime, the limited function of the element of the possibility to foreseeresult in subjective illegality to objective imputation should be brought into playsufficiently and it should be investigated preferentially.the traditional criteria centered on duty of care which contains a great deal ofobjective and subjective elements to recognize negligent perpetrating act that hasresulted in much objective and subjective confusion,based on the analysis of theobjective imputation advocated by professor Roxin, This text states that these twostandards in fact are two sides of recognizing negligence act.on grounds of rationalconsideration,this chapter regards the duty of result avoidance as the basic concept,and draws useful concept and standards from the objective imputation, to explore therule of recognizing negligent perpetrating act.In chapter Ⅲ: It can be said that how to achieve the identification of negligentperpetrating act is a major proposition in negligence theory of German and Japan andthey have developed two standards. Here, this text doesn’t want to explore the specificstandards of how to recognize negligent perpetrating act, but to analysis and criticizesome specific elements in the two standards.This text thinks that we should first know about the act of negligent constitutiverequirements,negligent perpetrating act is the act that has violated objective duty ofresult avoidance, but the standard of recognizing actual act has violated it should befound from other laws. When actual act goes beyond normal behavior standards andresulted in heavy violating legal interests, we can say it has violated objective duty ofresult avoidance. Negligent crime is the “Aggregated consequential offense” of theadministrative banning law. The duty of result avoidance is not the standard todistinguish the positive act and the omission, this text is in favor of German’s causalrelationship and Japan’s violating legal interests as the standard. From the prospective of causal relationship, the type of action that directly, essentially and mainly causesviolating legal interests is a beneficial standard.The actor who has violated duty of result avoidance can’t be finally evaluated asnegligent perpetrating act, it should be recognized deeply.by criticizing the traditionalstandards of identification of the negligent perpetrating act, This text’s opinion is that,by learning the concept of objective imputation theory, committing to risk that is notallowed by law is the essence of negligent perpetrating act. The reorganization of theact has produced risk not allowed by law should depend on the organization of theviolation of duty of result avoidance, the impossibility to avoid result leads to theinvalidity of the duty of result avoidance, by drawing lessons from objectiveimputation theory, This text’s opinion is, the act that has violated the duty of resultavoidance and produced risk not allowed by law is negligent perpetrating act; the actthat has violated the duty of result avoidance but the risk not allowed by law didn’tcome true, it didn’t fit for the constitutive requirements; when the violating legalinterests wasn’t in the protective scope of the rule,the act also didn’t fit for theconstitutive requirements, the actual act can’t be evaluated as the negligentperpetrating act. The increased risk is theory that strengthens the objective imputationwhen the casual relationship between the act that has violated the duty of resultavoidance and the illegal result is not easily conformed. After the rethought of thetheory of allowed risk and hazardous assignment, this text believes that the former isjust the interpretation of allowable safe conduct from another perspective, while thelatter is actually the assignment of duty of result avoidance, and thus they are thetheory that limits duty of result avoidance, but has little meaning in judicialapplication. This text also thinks that the trust principle is a useless rule.
Keywords/Search Tags:negligent perpetrating act, system of constitution crime, objective illegality, subjective illegality, duty of result avoidance, objective imputation
PDF Full Text Request
Related items