Study Of Negligent Accessory

A negligent accessory is a criminal who plays a minor role in the joint crime of negligence.Negligent accessory is a kind of common crime of negligence.The premise of admitting negligent accessory is admitting the crime of negligence.Negligence accessory is not only a social phenomenon objectively existing in judicial practice,and it also has logical selfconsistency.Negligent accessory can be divided into negligent secondary perpetrator,negligent abettor and accessory of negligent offender.However,due to the cross complexity of fixed accomplice and crime of negligence,the classification can be further subdivided.When judging negligent accessory,it is necessary to investigate the subordination of behavior,subjective fault and causality.In punishable aspect,negligent secondary perpetrator and accessory of negligent offender are punishable,negligent abettor is not punishable.In addition,the punishment of specific behavior shall be comprehensively judged combining with cause of non-imputability,like trust principle.Although negligent accessory is widespread in social life,it is mainly focused on the fields of supervisory negligence,traffic accident and medical negligence.This paper is divided into four chapters,amounting to more than 60,000 words.The first chapter is mainly a summary of the joint crime of negligence.As joint crime of negligence is the upperseat concept of negligent accessory,the theoretical basis,case rheology and legislative provisions have a profound influence on the theory of negligent accessory.In this part,focusing on the above three aspects,the author the comprehensively analyzed the theory of joint crime of negligence in China and Japan.Meanwhile,the author also found the theoretical basis for the existence of negligent accessory,namely,the theory of joint conduct in the theory of accomplice and the new negligence theory in the theory of negligence criminal.The second chapter mainly demonstrates the rationality of negligent accessory.From a practical point of view,a negligent accessory fault is not only a kind of social phenomenon exists objectively,and it also meets the judicial practice need.From the point of precedents at home and abroad,there is no lack of cases citing negligent accessory theory so as to suit punishment to crime;It is also existing in the current judicial interpretation and exception legislation in our country,which is in accordance with the inherent requirements of criminal policy.From the theoretical point of view,the recognition of negligent accessory is not in conflict with the theory of common crime and the theory of negligent crime,and it plays a good bond between the two theories.As negligent accessory has fully considered the subordination of objective behavior and the negligence of subjective maliciousness,it better meets the requirement of general prevention and special prevention in the equalization of crime.When it comes to aggravated consequence crime,in which the basic constitution of crime is intentional and the aggravating constitution of crime is negligent,the theory of negligent accessory can resolve the contradiction between the theory of the current accomplice and the theory of aggravated consequence offense.The third chapter mainly discusses the content of the negligent accessory theory.Negligent accessory can be divided into negligent secondary perpetrator,negligent abettor and accessory of negligent offender and only a small part in each type can be identified as negligent accessories.When judging whether or not constituting a negligent accessory,it should be judged from the subordination of behavior,the negligence of the subjective state of mind,and the causality between the action and the result.In the judgment of whether the act that constitutes a negligent accessory should be punished,first of all,the principle of basic punishment in negligent crime should be followed.Secondly,on the typed judgment,negligent secondary perpetrator and accessory of negligent offender are punishable;as negligent abettor is a vertical accomplice hidden behind the principle offender,it is not punishable.In the end,the punishment of specific behavior shall be judged combining with the cause of non-imputability.The fourth chapter mainly discusses the specific application of negligent accessory theory in practice.In supervisory negligent crime,negligent accessory exists in the form of joint crime with supervisory negligence.There are two particularities of negligent accessory in supervisory negligence: the first is,based on the identity of the supervisor,the application of trust principle shall be constrained;Second,compared with the general negligent accessory,there is a certain longitudinal expansionism in criminal punishment.In the traffic accident accessory,negligent accessory exists not only in basic traffic accident crime constitution,but also in the aggravated crime constitution of hit-and-run traffic death.As to the stipulation,which was promulgated by the Supreme Court in 2000,concerning the traffic accident joint crime in the traffic accident cases,it complies with the value orientation of future development of the theory of negligent accomplice.However,there are still improper expanding of the responsibility of the instructed person and it is against the principle of suiting punishment to crime.In medical negligence,negligent accessory does not only exist in basic medical negligence of the predominantly group medical treatment,but also exist in two kinds of special forms.One is in team medical treatment dominated by nurses and the other is pharmacists' medical negligence liability.Whereas,if deals with medical negligence the same as negligent crime,standing in the angle of the expansion of punishment,it will inevitably lead to defensive medical treatment.Therefore,on medical negligence criminal punishment,there shall be a reasonable limitation.