Research On The Theory Of Common Guilty Of Negligence

The research purpose of this article is to solve the problem of attribution of negligent joint principal offenders through the analysis of the comparative law of China and Japan,and conduct research through methods such as conceptual analysis,legal analysis,case analysis,and literature summary.Mainly aimed at the question of whether the negligent joint principal offender can be established and the basis for its establishment.In Japan,the discussion on the theory of negligent joint principal offender is more in-depth,and it certainly occupies a general position in recent years.The first part is the understanding and controversy of negligent joint principal offenders under the traditional theory of our country.Under my country's legislation and traditional theoretical understanding,the establishment of joint crimes is based on the fact that they have greater legal interest infringements and dangers than separate crimes.However,in negligent crimes,because there is no intentional connection between the perpetrator and the crime,Without mutual cooperation and cooperation,it is impossible to produce more serious harm than separate offenders.In this way,the understanding of joint principal offenders cannot be applied to the occasion of declaring offenses.However,such an understanding will lead to unaccountable judicial loopholes in some practical cases of negligent joint principal offenders.In this regard,the court either chooses to implicitly borrow the theory of negligent joint principal offenders,or skip the detailed argumentation of the imputation process to avoid improper judgment results.Some scholars began to argue that the theory of negligent joint principal offenders should be introduced to solve such problems.However,its foundation and rationality have been widely disputed,forming a situation where the affirmation and the negation are opposed to each other.However,this requires us to deeply explore the negligence.The basis for the establishment of joint principals and the constitution of the crime shall be used to properly resolve such problems.The second part of this article introduces the development context and practical trends of the theory of joint negligent principal offenders in Japan to provide a certain reference for our country.Japan's discussion on this issue was initially the same as our country's,focusing on the possibility of the concept's establishment.The opposition between the affirmation and the negation revolves around the common crime and behavior common theory based on the subjective elements of the common principal.However,with the influence of the German teleological behavior theory,this kind of oppositional structure also collapsed.The common crime theory is equal to the negative theory,and the behavioral common theory is equal to the affirmative theory.This kind of opposite structure no longer exists.Under such circumstances,with problem awareness as the starting point,the opposition in the academic world has shifted from conceptual opposition to beneficial opposition.At this stage,from the standpoint of the criminal joint doctrine,the doctrine that the negligent joint principal offender is affirmed is strongly supported.The Japanese scholar Fukudahira who holds this view argues that the causal behavior theory only provokes the result of negligent behavior as a problem,and only provokes the result.As the content of the constitutive elements,the teleological behavior theory regards the implementation of the behavior directed to the purpose as a problem,so that the result of the violation of the objective duty of care is regarded as the constitutive element of the negligent crime,which is different from the causal behavior theory.In this way,the intention to carry out an act is strictly distinguished from the intention.Even if it is from the standpoint of the common theory of crime,the meaning of joint execution is not necessarily the same as intention.Later,the joint violation of the common duty of care based on this theory argues that the negligent common principal refers to those who jointly perform dangerous acts that are sufficient to realize the constituent elements.The commoners should also bear the duty of care for the parts shared by the other party,but due to the lack of mutual Pay attention to the occasions that lead to the result.On such occasions,for joint dangerous acts,not only must pay attention to the part that is shared by oneself,but also the part responsible for other contributors must also bear the duty of care.This doctrine has become the general viewpoint of Japan with its powerful explanation of the foundation and rationality of the joint principal offender of negligence.In the third part,by drawing on the current general view of Japan,that is,the joint violation of the joint duty of care,the basis for the establishment of the negligent joint principal offender is reasonably clarified.That is to say,a bidirectional,contract-like constraint is formed between the plural actors about the joint implementation of dangerous behaviors.Under such circumstances,the common offenders achieve common things through mutual contributions to others.The bidirectional restraint from the joint crime plan is the substantive basis for participating in the mutual imputation of the actions of others.Moreover,the basis for such joint principal offenders is no longer limited to deliberate offenses,and can also be established in the case of negligent offenses.The fourth part discusses the specific application of the doctrine of joint violation of joint duty of care in our country.The first is the analysis of paragraph 2 of Article 25 of my country's Criminal Law.In our country where the empirical law restricts joint crime to intentional occasions,some scholars advocate interpretative efforts by distinguishing common negligence from joint negligence,but the effect is not ideal and the persuasive power is not strong.Moreover,we can see that the legislative terms adopted by the legislators are very restrictive.It clearly states that joint crimes refer to joint intentional crimes and clearly defines the scope of the concept of joint crimes.Then the second paragraph specifically emphasizes negligence and joint negligence.Joint crime is punished.This legislative intent is actually very clear.Therefore,when the interpretative possibilities are exhausted for this problem,it can only be solved by the legislative theory.In addition,in the specific application,the difference between a negligent joint principal offender and a negligent joint concurrent offender is clarified,and the judgment standard of joint duty of care shall be clarified.Then combine the theory of joint violation of the common duty of care into the difficult cases in our country's practice for analysis and testing,and clarify the benefits.