On The Imputation Of Criminal Negligence

As far as the imputation of Criminal Negligence is concerned,the theoretical circle of Criminal Law in mainland China has experienced quite sensational changes,especially the introduction of Criminal law theory in Germany and Japan,which has made the discussion of the imputation theory of Criminal Negligence reach an unprecedented upsurge and provided a theoretical basis for further research.However,despite the abundant theoretical research,there are still many problems,especially with the development of society,more and more cases of business negligence,and even the emergence of high-tech technology and artificial intelligence,the task of Criminal Negligence theory will become more and more arduous.This paper sorts out the extraterritorial evolution of the theory of Criminal Negligence,and makes a detailed theoretical interpretation of responsibility element of negligence,purposivism of the imputation of negligence,and the Objective Imputation and illegality of negligence.On this basis,it further explores internal succession of the imputation of Criminal Negligence,and find that it basically presents two characteristics:Firstly,no matter which theory is used to reform the imputation of Criminal Negligence,it can not escape from interpreting the concept of perpetrating act,and even inject the partial judgment method of objective imputation theory into the concept of perpetrating act;secondly,it attaches importance to the judgment of the division and ranking of objective and subjective aspects,because of the introduction of Germany criminal theory.Especially the emphasis on objective aspects,is also an intuitive reflection of the past criminal law theory of extricating from the haze of subjective.But the problems lie in:firstly,the concept of perpetrating act is overburdened,the content is becoming more and more substantive,and the function is becoming more and more expansive;secondly,there are doubts about using objective imputation theory to construct the imputation of Criminal Negligence.On one hand,objective imputation theory is suspected of carrying out subjective imputation.On the other hand,neglecting the individual ability and adopting the criterion of complete objectivity to construct the the imputation of Criminal Negligence is not only difficult in theory,but also difficult in practice.In order to solve these problems and reconstruct the imputation of Criminal Negligence,we need to change our concept,that is,to dispel the concept of perpetrating act,and to abandon the standard of general people.The standard of general people has neither the legitimacy nor the necessity of existence,and in the end it is inevitable to turn to the standard of the actor.Based on this logic,it is of great significance to take the actor's ability as the research perspective,and then re-clarify the essence of the duty of care according to the actor's ability.The duty of care is the maintenance requirement of the actor's individual ability,and the actor's ability also reverse brakes the duty of care.It can be seen that the reconstructed theory of the imputation of Criminal Negligence actually follows the individualized theory in the construction of negligent offense in Germany,pays attention to the individual ability of the actor,and further studies the possibility of avoidance,the possibility of foresight and the purpose of normative protection under the individualized theory.Finally,this paper will take a series of legal alternative behavior cases as samples,excluding the application of risk-raising theory in the past judicial practice,and further improve the theory of avoidance possibility,combining with the specific judgment method in the realization of hypothetical allowed risk theory,so as to analyze specific cases.