| At present,on the basis of drawing lessons from German and Japanese criminal law theories,there are new growth points in the research of negligent crime theory in China.There are some researches on the structure of negligent crime,the victim’s self response principle and the protection purpose of the duty of care.There are few researches on the violation of the duty of care or the judgment of the violation of the duty of care.From the perspective of the theory of action without value,the duty of care in negligent crime can be divided into the duty of foreseeing the result and the duty of avoiding the result.Of course,this classification is also in line with the requirements of the objective imputation theory.To convict the perpetrator only from the perspective of the breach of the obligation of foreseeing the result may be reduced to subjective imputation and lead to excessive punishment of negligent offense.In order to solve the problem of subjective imputation,the judgment of result avoidance obligation violation is introduced,starting from whether the actor has fulfilled the objective duty of care.Generally speaking,the judgment on the constitution of negligent crime needs to conform to the constitutive requirements of negligent crime,that is,objectively conforming to the elements of violation and subjectively satisfying the elements of responsibility.Duty of care is the key to judge the above factors.This paper attempts to analyze and demonstrate the two duties of care in detail.The paper is divided into five parts,the first part is the problem,through combing the judicial documents,to find out the shortcomings of the judgment of duty of care in judicial practice;the second part is the context of the development of the duty of care in negligent crime,as well as the development of relevant theories and theories in negligent crime;the third part is about the judgment standard of the violation of duty of care in negligent crime,and the existence of these standards The fourth part is to reconstruct a judgment standard of duty of care violation on the existing basis.The fifth part is to examine the new path through a case in the conclusion.The details are as follows:The first part is: first of all,through the case of sun Weiming,we can see that foreseeing possibility is the key to distinguish intentional crime and negligent crime,and negligent crime will be defined as intentional crime once the judgment is wrong;secondly,in judicial practice,the judgment standard of duty of care in negligent crime is often the reason for the result,and the court will not perform the objective attention of the duty of result avoidance Obligation is the only criterion of breach of duty of care.The second part is: in order to better understand the judgment of the violation of duty of care,and how to set the judgment standard,we need to effectively sort out the theory of negligent crime,and understand the past and present of the theory of negligent crime in Germany and Japan.In the old negligent crime,the possibility of foreseeing the result is its essential feature,and the investigation of subjective psychology becomes the main basis for the establishment of negligent crime.The new theory of negligent crime,under the guidance of the theory of priceless behavior,holds that the structure of negligent crime includes not only the elements of responsibility(the possibility of foreseeing the result),but also the elements of illegality(the obligation of avoiding the result),that is,the content of the objective duty of care,and emphasizes the violation of the obligation of avoiding the result as the core.In the new negligent crime,due to the specific historical period,the possibility of non-specific result foresight has become the mainstream,which emphasizes the investigation of the degree of the possibility of foresight.The theory of objective imputation and negligent crime have developed into negligent illegality under objective imputation,which is based on the risk prohibited by law and advocates the judgment of dangerous behavior.The third part is: about the judgment standard of duty of care violation,the traditional theory can be divided into two aspects to judge,one is the judgment from the result of foreseeing the possibility,the other is the judgment from the result of avoiding the obligation.There are general standard theory,actor standard theory and compromise theory to judge the possibility of result foresight.According to the standard of common people,that is to say,starting from the standard of common people in society,if the actor violates the standard of common people in society or fails to meet the standard of common people in society,he will violate the obligation of foreseeing the result.The deficiency is the uneven distribution of capabilities in highly specialized fields.According to the actor standard theory,from the perspective of the actor himself,if the actor should reach but does not reach the actor’s own ability standard,it is judged that the actor violates the obligation of foreseeing the result.The remaining problem is that in practice,the judgment of the actor’s own ability can not be operated.According to the compromise,starting from two levels,the actor standard is adopted in the illegal elements,and the general person standard is adopted in the responsibility elements.It is consistent with the existing problems of subjective theory.At the same time,judging the two standards has brought difficulties to the judicial organs,which makes the problem complicated and difficult to operate.In the judgment of the obligation to avoid the breach of result,there are substantial obligation theory and formal obligation theory.According to the theory of substantive obligation,the judgment of the violation of the obligation of avoidance of result should be based on the protection of legal interests.When the legal interests are infringed,the obligation of avoidance of result will be violated.Its defect is that the scope of punishment is too wide.According to the theory of formal obligation,the violation of result avoidance obligation is the violation of traffic rules and other specific administrative rules.The existing problem is how to grasp the limits of specific administrative rules,improper grasp will lead to too wide or narrow the scope of punishment.Of course,after a reasonable part of the integration of the two,there is a normative restriction theory.The fourth part is: in clarifying the complicated judgment path in the past,it puts forward a new inspection idea,that is,while advocating the new theory of negligent crime,it abandons the obligation of foreseeing the result as the second order condition of deriving the obligation of avoiding the result,that is,the double inspection idea of violating the obligation of foreseeing the result and the obligation of avoiding the result.The specific inspection path is:when judging the violation of the obligation of foreseeing the result,the actor standard should be refined and limited,and the actor standard should meet the expected cautious attitude of the legal norms,the cognitive level and operation level should be maintained at a certain benchmark,and the degree of foreseeing the result is equivalent to the occurrence of danger.When judging the violation of the obligation to avoid the result,we advocate the theory of normative restriction.We think that while it is in line with the purpose of protecting legal interests,the judgment of legal norms takes the lead,and it is in line with the purpose of criminal law protection and the principle of interpretation when filling in the blank.It should be noted that the judgment of duty of care should not exceed a certain limit,and a certain risk allowed by law should be set,otherwise it may lead to improper conviction.The fifth part: the theory of negligent crime is the basic theory of criminal law,how to use it effectively in practice is the key.In the face of the death of a girl who fell into a car in a previous period of time,this paper uses the above inspection method to carry out specific analysis and demonstration,in order to achieve the purpose of correctly applying the criminal law. |
