Study On The Duty Of Care Of Negligent Crime

Since modern times, the criminal laws of many countries are based on the principle of punishing the intentional crime, while the punishment of negligent crime is the exception. The theoretical research of criminal law has been focusing on intentional crime. However, with the development of social economy, and the rapid change of science and technology, the negligent crime grows rapidly in the number, and also caused severer bad influence on the society than the intentional crime. How to deal with dangers of negligent crime associated with the social development, define the boundaries of negligent crime reasonably, and protect the stability of social order, is an important subject the contemporary criminal law scholars have to face in our country. The author believes that the nature of criminal negligence is that people have the ability to pay attention to the duty of care violated his duty. Thus, the duty of care is the core of researching the criminal negligence, is also a key factor to determine that criminal negligence was established and to determine the severity of criminal responsibility. In terms of theoretical research, the study of German and Japanese criminal law theory for this duty of care issue has been more in-depth. For the study of the theory of the duty of care in our country at present both in breadth and depth is shallow. On the legislative situation, the criminal law is completely not involved in the content of the duty of care criminal negligence. Therefore, based on the research achievements of Chinese criminal law scholars, and some reasonable factors of foreign theory, this paper tries to redefine and perfect the scope and criteria for judging the duty of care, hoping to provide reference for the judicial practice of criminal negligence accurate conviction and sentencing.From a structural point of view, this paper is divided into five parts altogether, after a brief explanation in the introduction, and it is divided into four chapters.Chapter one is the "basic theory of criminal negligence of duty of care". It describes the source of the problem, the concept of duty of care, the nature, content, characteristics, classification, etc. From the analysis of many scholars’different views on the concept of duty of care, the author draws his own conclusion ultimately that the duty of care refers to the obligation prescribed by the criminal law, borne by the doer to foresee his actions may lead to harmful results and to form a subjective idea to take reasonable measures to avoid the occurrence of harmful results. This concept includes two aspects:the duty to foresee obligations and the duty to avoid results. The duty to foresee obligations means the doer needs to pay attention to his behavior so that he could foresee its dangerous consequences to our society. The duty to avoid results means the doer must take reasonable measures to avoid this specific result after his foreseeing these harmful consequences. Such doctrine covers the duties criminal suspects should bear from both careless mistakes and overconfident negligence in our criminal law. Therefore, I believe that this theory is reasonable. At present, this theory is accepted by most scholars of the criminal law. As for the classification of duty of care, the author tries to put forward his own view that it can be divided into typical duty of care and atypical duty of care. Typical duty of care is provided by laws, rules and regulations. Atypical duty of care is provided by folk custom and legal principle.The second chapter is "the basis of duty of care". Firstly, the author introduced a lot of views from German, Japanese and Chinese scholars, there are already existing dichotomy, trichotomy, quartering and even a fifth method viewpoints; Secondly, the author established some premise and principles to judge the basis of duty of care, and on this basis, the author compared and analyzed dichotomy, trichotomy, quartering and quintiles to define the duty of care.The third chapter is "to fulfill the duty of care." Firstly, the author introduced the premise to fulfill the duty of care:the doer possesses the ability to pay attention, focusing on the concept and criteria of the ability to pay attention, and then introduced elements of breach of duty of care, they are namely the existence of a duty of care, the ability to pay attention and being lazy to pay attention; through the comparative analysis of civil and common law, the author put forward his own standard which is called prudent person floating standard whose meaning is "assuming a prudent person’s ability to pay attention as a benchmark, considering specific conditions such as time space and the doer’s subjective content, make a judgement whether the doer has the ability to pay attention at the time, what’s more, this standard is not invariable, immutable and frozen, but floating in some range. The upper limit of the range is the case of the doer’s ability to go beyond the average person’s attention, the lower limit of the range is the case of the doer’s attention capacity is less than the average person. "The fourth chapter is "ought to be the design of duty of care". In this part, the author compared the theory of negligent crime’s evolution and development of German and Japan and different theories collide with each other. Through case analysis, the author explore the lack of the research of the duty of care from the theoretical and practical aspects.on this basis, the author put forward his theory of the duty of care ought to be designed:On condition that paying full consideration of the doer’s capacity to pay attention, this paper creatively tries to build a theoretical model to find a violation of the duty of care from positive and negative two aspects, which is the core value of this paper.