| There have been many arguments on the perpetrating act of Criminal Negligence in theory;there are few judgments on the conduct of Criminal Negligence s in practice.Firstly,This paper criticizes the old negligence theory by sorting out the theory of the practice of Criminal Negligence.The old negligence theory and the reversed old negligence theory are based on the worthlessness of the results,which do not make a substantial judgment on the act of the Criminal Negligence.This not only blurs the boundary between the daily behavior and the Criminal act,and expands the scope of punishment for the Criminal Negligence,but it also makes those impossible for constitutions and functions of the Criminal Negligence to achieve.Secondly,extending from the New Negligence Theory’s judgment on the conduct of the Criminal Negligence,this article takes the duty of care as the core to construct the conduct of the Criminal Negligence.However,the New Negligence Theory’s definition of the conduct of the Criminal Negligence fails to grasp the essence of the negligence,and its judgment of criminal conduct is essentially based on Objective Imputation.Relatively speaking,the theory of Objective Imputation has a set of logical,refined and comprehensive review systems.With the definition of the behavior from the unwarrantable danger of the creation of laws,and the combination of a series of imputation exclusions as a negative review,it is possible to more scientifically and accurately identify the conduct of the Criminal Negligence.Thereby it can further determine the wrongful conduct of the Criminal Negligence,and make the process when we judge the negligent crime is established is more standardized and rationalized,making the judgment of the conduct of Criminal Negligence becomes superior in theory and practice.The content of this paper is divided into three chapters,and the content of each chapter is as follows:The first chapter firstly sorts out the relevant theories of the perpetrator’s performance,mainly including the old negligence theory,the new fault theory and the judgement of the performance of the fault criminal in the Objective Imputation theory.What’s more,this article takes cases as a starting point,criticizing the judgment of the conduct of Criminal Negligence in the field of vision.There is no substantial judgment on the conduct of Criminal Negligence,so the scope of punishment for Criminal Negligence has been expanded,which includes three aspects.One is to blur the boundaries between daily behaviors and criminal acts,infringing the execution of citizens’ rights and the freedom of behavior.The second aspect is to repeat evaluation of the same facts,which increases the complexity of the review;The third one is to fail to provide behavioral guidance functions and fail to have the function of restricting the elements.On those bases,I further point out the theoretical defects of the old theory of negligence,so as to introduce the point of view of the theory of Objective Imputation.To focus on the Criminal Negligence’s conduct by the Objective Imputation theory,the second chapter defines the Criminal Negligence’s conduct as an act that "creates a danger that is not allowed by the law".Firstly,this interprets the theory of Objective Imputation,centering on the relative theory of German criminal law scholar Professor Roxin.Secondly,with the help of cases,it further substantially judges and divides the "the unwarrantable danger by laws",pointing out that the essence of "the unwarrantable danger by laws" is "the violation of obligations",which coincides with the definition of the Criminal Negligence’s conduct in the new negligence theory.Finally,it is pointed out that the judgment of the Criminal Negligence’s conduct by the Objective Imputation theory is superior in theory and practice.The third chapter summarizes and evaluates the old negligence theory and the Objective Imputation theory’s judgment on the conduct of the Criminal Negligence.It further develops arguments based on the specific judgement of the Criminal Negligence ’s conduct and the wrongful judgment.In the first place,it defines the specific judgement of performances as the violation of obligations discussing the theory of the violation of the duty of care as follows.First,it responds to the old negligence theorists’ doubts about the violation of the duty of care.Second,the self connotation of interpreting the duty of care contains the content and the standard of the duty of care.Among them,there is a dispute between the objective duty of care theory and the individual ability theory in the standard of duty of care.Secondly,the wrongful judgment of the conduct of the Criminal Negligence is discussed with examples: firstly,to distinguish the distribution of the duty of care,and analyze the assurance of the dynamic duty of care in specific cases at the core of the reliance principal.Secondly,to analyze the exclusion of the duty of care to standardize the centered protection purpose theory,with combining the judicial practice for dividing the boundary and scope of the duty of care. |
