An Analysis On Criminal Behavior With Negligence And Making Dangers Not Allowed

Negligent crimes, different from intentional crimes, are a kind of independentpunishable act. However, provisions about negligent crimes of criminal laws inChina bring in verdicts by comparison with provisions about intentional crimes andaffirm the crime in accordance mainly with subjective mind state of the actor andresults of the behavior. Part one summaries and comments on the provisions aboutnegligent offense in substantive laws in China. Negligent crimes are mixed up withcriminal negligence. The scope of the establishment of a negligent crime is amplifieddue to the idea of preferring results to the acts. In the meantime, from the perspectiveof criminal law theories, researches on criminal behavior with negligence arewoefully inadequate in the academic field even though the concept of “no act, nocrime” enjoys popular support. On the contrary, in the research process of criminalnegligence, scholars of criminal laws in China pay excessive attention to the duty ofcare and are over reliant on the subjective mind state and the objective conditions.The basis and criteria of duty of care itself remain unclear so that it can not serve asthe base of legitimacy for imputation. There is not much room for the judge to makehis discretion due to the judicial environment in China. Given the reasons above, it isof vital importance to pave the way for the criminal negligence research in China.The author believes that it might be an option to proceed with the criminal behaviorwith negligence.In order to study the criminal behavior with negligence, it is inevitable to resortto the traditional theory of negligence, the new negligence theory and the objectiveimputation theory. The understanding and classifying of the latter three theories ontoonly offers the background, contents and essence of the former one, but also showsnecessity of the research on criminal behavior with negligence in combination withthe social and legislative environment in China. What’s more, it attempts to explainthe specific applications of the actual criminal negligence verdict balancing the prosand cons. The author introduces the contents and their comments of criminal negligence theories and points out that criminal behavior with negligence originatedfrom the emergence of composition elements of new negligence theory, whichmainly means acts that breach the objective duty of care. However, since it is hard tostandardize duty of care, objective imputation theory, from the perspective of reality,defines criminal behavior with negligence as making dangers not allowed.In fact, there are also theories about criminal behavior with negligence in Chinaand they are classified into two types: affirmative theory and negative theory. Thetheories are described and analysized in Part Three. The sources of those theories aremainly presented in part four, which can be resorted to the verdict of criminalbehavior with negligence in criminal law theories in Germany and Japan. Which onecan define criminal behavior with negligence better, theory of duty of care breach orobjective imputation theory? What are their judgmental criteria respectively? Whatproblems come into being consequentially? By far, the author personally thinks thatthe objective imputation theory put forward by Professor Loxin prevails over othersin the arena. As to how to implement the objective imputation theory into theestablishment of basic verdict provisions of criminal behavior with negligence inChina, elaboration will be presented on part five.