On Conflict Of Duties In Criminal Law

Today's society is not only a rapidly developing society,but also a society closely surrounded by risks.With the realization of these risks,traffic accidents,environmental pollution,medical problems and other frequent outbreaks,negligent crime also has a great potential of flooding.As the essence of negligent crime,duty of care plays an inestimable role in limiting the establishment of negligent crime.Therefore,this paper focuses on the proposition of duty of care,which consists of three parts:The first part: overview and basis of the duty of care.As for the concept of duty of care,by comparing the interpretation of the concept between China and foreign countries,it is found that the differences are mainly influenced by the legislative situation and the theory of crime constitution.There are detailed provisions on negligent crime in the criminal law text of China,based on which Chinese scholars expand their understanding of the concept of duty of care;while German and Japanese scholars grasp duty of care from the constituent elements,rarely directly It is followed by the concept of duty of care.However,from the perspective of semantics and the law of daily cognition,this paper agrees with the Chinese scholars' interpretation of the duty of care.At the same time,it also makes a distinction between "subjective and objective obligation",which is closely related to the concept,and clarifies the meaning of "subjective" and "objective" in various works on duty of care.In terms of the basis of the duty of care,although scholars at home and abroad divide it into formal basis and substantive basis,the division of the form basis of the duty of care by Chinese scholars is more diverse and difficult to master.Here,we can draw lessons from the division method of German and Japanese scholars,and divide the form basis of the duty of care into statutory and non statutory duty of care,or written and unwritten duty of care More clearly.The second part: the content of the duty of care.Based on the development and change of negligence theory in Germany and Japan,this paper expounds the difference of the content of duty of care.In the theory of Japanese criminal law,the theory of fault mainly experienced the development of the old fault theory,the revised old fault theory and the new fault theory.The duty of care of the old fault theory is the duty of foreseeing the result,the duty of care of the revised old fault theory is the duty of foreseeing the result and avoiding the result,and the duty of care of the new fault theory is the duty of avoiding the result At fault.In German criminal law theory,the development and change of fault theory is mainly accomplished through the transformation of objective imputation theory,and the concept of duty of care has also completed its historical mission through the transformation of objective imputation theory.The content of the duty of care of Germany and Japan provides a reference for the correct determination of the content of the duty of care in China.The new theory of fault and the duty of foreseeing the result are not the product of the reference to the theory of Germany and Japan.The third part: the limitation of duty of care.This part mainly introduces three theories of permitted danger,distribution of danger and principle of reliance which can limit the scope of duty of care and the establishment of negligent crime,and how each theory is applicable in practice.The permitted danger refers to the inevitable behavior with the risk of infringement of legal interest in social life because of the progress of science and technology,but compared with the benefit of the behavior to social development,even if it leads to the occurrence of harmful results,it can also give the existing value in a certain range,which is the result of the balance between the usefulness and danger of the behavior;the distribution of danger refers to In order to avoid or reduce the risk,participants should share the risk with each other on the premise of mutual trust,which is conducive to the correct and reasonable distribution of the duty of care of all participants;the principle of trust is based on the above two theories,which can rely on the other party and also bear its duty of care,so as to avoid or reduce the risk The possibility of responsibility belonging to oneself.The permitted danger and danger distribution are related to the commitment of the duty of care of the actor or the participants.The principle of trust directly affects the establishment of the negligent crime.Although the theoretical mechanism is different,they all play a limited role in the delineation of the duty of care and the liability of negligence.