The Boundary Of Duty Of Care In Negligent Offender

In view of the important role of the duty of care in the judgment of the negligent crime,the study of the boundary of the duty of care is related to what kind of behavior constitutes the negligent crime.Through the research on the basic theoretical category of duty of care,this paper first makes clear the basic concept of duty of care,which lays a foundation for the following discussion.The former refers to the formal basis of the duty of care,which mainly focuses on the two types of statutory and non-statutory duty of care.The latter refers to the substantive basis of the duty of care,which is generally considered to be the infringement of legal interests.Then through the historical evolution of the negligence from the old negligence theory,the modified old negligence theory,the new negligence theory and the new negligence theory,the author finds that the focus of duty of care has shifted from the responsible class to the illegal class.But the duty of care is not only the objective duty of care,the duty of care is the unification of subjective and objective duty of care.Secondly,the essence of the negligent crime and the duty of care is investigated.There are several viewpoints about the imputation principle of negligence,such as will imputation,norm imputation,control imputation and danger imputation.Volitional imputation means that the actor is condemned by law because he pursues or foresees the result,but because the negligent offender has no attitude towards the result,and the duty of result foresight gradually lags behind the development of social division of labor,and can not protect the legal interests,so this imputation theory is abandoned.Normative imputation refers to the evasion obligation that the actor has the reprehensible nature because of his violation of norms and turns his attention to the result.However,in emphasizing the importance of the norms,the more essential riskcreating factor is neglected,and because the norms rely heavily on the norms,the criminal law is in danger of becoming the mouthpiece of the norms.The proposal of liability for control meets the need of legal interest protection,which shows a tendency of moral liability,but the essence is still the concern of legal interest.Compared with standard imputation,risk imputation puts the protection of legal interests in a more important position and is more reasonable.Then the analysis of the judgment standard of the actor’s attention ability.There are three theories in academic circles: the theory of standard for common people,the theory of standard for behavior,and the theory of dual standard.Because of its defect of violating the principle of consistency between subjective and objective,the theory of the standard of the average person has hardly been supported by the pure theory of the standard of the average person,and has developed a modified theory of the standard of the average person,trying to remedy its defect.The standard of the perpetrator has come out of the woodwork this year,but it can not take on the responsibility of judging the capacity for attention because of its lack of stereotypes and two shortcomings that would undermine the system of criminal law.The theory of dualistic standard takes the common person as the standard in the illegal stage and the actor as the standard in the responsible stage.Although the conclusion is almost the same as the standard of the actor,it can judge the wrongfulness of the behavior of the actor whose capacity of attention is lower than that of the common people,so that the victim can obtain the right of self-defense.As for the behavior person whose attention ability is higher than that of the common people,the dual standard theory can specify the reference group of the common people standard theory,make a more accurate investigation of the behavior person’s ability,and urge the behavior person’s excess ability to play.The criterion of dualistic duty of care is more favorable to the judgment of attention ability.The boundary of duty of care is defined by the principle of reliance.By cancelling the duty of foresight,it relieves the actor from the duty of avoiding the result,and excludes the actor from the responsibility.The theoretical basis behind the principle of reliance is the permissible risk,which provides a new way for the actor to avoid liability when the result of harm still occurs after the actor performs the duty of care.The essence behind both lies in the balance of interests.This is the second key to define the boundary of duty of care: the theory of balance of interests.The theory of benefit measurement under the guidance of the Communitarianism compares individuals with society and,under the guidance of criminal policy,places the aim of prevention in a more prominent position.