Classification of criminal negligence

China's criminal law divides negligence into negligence and overconfidence according to whether the actor foresees the harmful consequences.

Negligence

Negligence refers to a person's psychological attitude that he should have foreseen the possible consequences of his actions that will harm society, but he did not foresee them because of negligence, which led to such consequences. This is a typical fault.

Negligence is an ignorant negligence, that is, the actor did not foresee the possible harmful consequences of his behavior; The reason for not foreseeing is not that the actor can't foresee, but that he didn't foresee because of negligence on the premise that he should have foreseen; If the actor is careful and responsible, he will foresee and avoid harmful results. Foresight is the premise, failure to foresee is the fact, and negligence is the reason. What should be foreseen but not foreseen due to negligence is the cognitive factor of negligence. The will factor of negligence is to oppose the occurrence of harmful results or hope that harmful results will not occur, or at least neither hope nor allow harmful results to occur. Because the actor did not foresee the harmful result, it is impossible for him to hope or let the harmful result happen when he carries out the act. However, the will factor of negligence is a negative factor, and the judicial organ does not need to prove it. As long as the cognitive factors of negligence are proved and there is no evidence to prove that the actor hopes or lets the harmful results happen, it can be regarded as negligence.

Judging from judicial practice, the first thing to judge whether the actor is at fault is not to judge whether the actor is at fault, but to judge whether the actor should foresee the possible consequences of his behavior that will harm society. If he should have foreseen it, it means that the actor was negligent. On the premise that it should be foreseen, there is no situation in which the actor is not negligent, but unforeseeable. Therefore, the key to identify negligence is to determine the premise (under what circumstances) and the content that should be foreseen (what).

1. Predictability is a prerequisite. The obligation to foresee is obviously a kind of obligation to foresee, which includes not only the obligations defined by laws, decrees, rules and regulations on duties and business, but also the obligations put forward by the norms of daily life. However, the state only requires those who have the ability to fulfill their obligations, that is, to fulfill their obligations on the premise that they have the ability to fulfill their obligations. Therefore, the obligation to foresee is based on the possibility of foreseeing. Obligation norms are set for ordinary people and do not need to be specifically determined; Whether it can be foreseen varies from person to person and needs to be specifically determined; If the actor can foresee, he should foresee. Therefore, the key is to judge whether the actor can foresee the harmful results. There has always been a dispute among subjective theory, objective theory and compromise theory in foreign criminal law theory, whether to expand or narrow the scope of negligence. We believe that this problem should be solved according to the principle of the unity of subject and object.

First of all, the basis of judgment (or data) should include subjective and objective facts, that is, the level of knowledge of the actor should be combined with the degree of danger of the behavior itself and the objective environment when the behavior is implemented to judge whether it is foreseeable. Some actors can foresee the possible harmful results of high-risk behaviors according to their own level of understanding, but they can't foresee the possible harmful results of low-risk behaviors; Some actors can foresee the possible harmful consequences of a certain behavior under general conditions, but under some special conditions, due to the limitation of objective environment, they cannot foresee the possible harmful consequences of a certain behavior; In the same objective environment or behaviors with the same degree of danger, some actors can foresee because of their high level of knowledge, and some actors cannot foresee because of their low level of knowledge. It can be seen that it is impossible to draw a correct conclusion without considering the dangerous degree of the behavior itself and the objective environment of the behavior at that time, but only considering the knowledge level and energy of the actor; Only by combining these subjective and objective facts can we draw a correct conclusion.

Secondly, the judgment method (or process) should adhere to the combination of subjectivity and objectivity, that is, the process of analyzing problems should adhere to the objective requirements of objectivity on subjectivity and combining the knowledge and ability of peers. Laws, decrees, rules and standards put forward objective requirements and foreseeing obligations for ordinary people (if it is the foreseeing obligation of a special industry, it is the requirements and obligations for ordinary people in the industry). To judge whether the actor can foresee the harmful results, it is necessary to link the actor's cognitive level with this objective requirement and see whether the actor's subjective initiative has reached the level that meets the objective requirement. Without these requirements, we will lose the standard of measurement and inevitably get the correct answer. Only by comparing the knowledge and ability of the actor from these requirements can we relatively determine whether he has the ability to adapt to objective requirements, and then judge whether he can foresee the occurrence of harmful results.

2. What should be foreseen is the harmful legal result. China's criminal law requires that the perpetrator of negligent crime should foresee the possible social consequences of his actions, but "social consequences" is a very broad concept, and we can only understand it within the scope stipulated by law. Because the negligent crime takes the harmful result as the constitutive requirements, and the constitutive requirements are stipulated by the criminal law, the harmful result here can only be the specific criminal result stipulated by the criminal law. For example, when negligence causes death, the actor should foresee the specific legal results that his actions may cause death to others. Of course, the specific results are relative. In the negligent crime endangering public safety, the result that the actor should foresee is not necessarily specific, but it must be the result required by the specific provisions of criminal law. The ultra-new negligence theory holds that as long as the actor feels uneasy when implementing a certain behavior, but fails to take measures to avoid the result, it is negligence. This actually expanded the scope of punishment for negligence and even gave up the requirement of guilt. In fact, it has also caused unfairness: a courageous person may not feel afraid when implementing an act, so it is difficult to make a mistake; People who are timid may feel afraid when doing the same behavior, so they are prone to make mistakes. Moreover, it is extremely difficult or even impossible to judge whether the actor has fear.

Inappropriate assumption of negligence

The fault of overconfidence refers to a person's psychological attitude that he has foreseen that his behavior may produce harmful results to society, but credulity can be avoided, thus producing such results.

The mistake of overconfidence is the mistake of knowing. Actors have foreseen that their actions may have harmful consequences to society, and believe that they can avoid harmful consequences. This is the cognitive factor of overconfidence and negligence. Foresight is a fact, credulity can be avoided, and it is the subjective reason for the actor to implement the behavior while foreseeing the harmful results. Credulity is avoidable, which means believing that you can avoid the result with certain subjective and objective conditions while foreseeing the possibility of the result, but the subjective and objective conditions are not reliable. Credibility can be avoided mainly in two situations: one is to overestimate one's subjective ability, and the other is to improperly estimate the role of objective conditions in reality in avoiding harmful results. Credibility can avoid and show that the actor neither wants nor lets the harmful consequences happen, which is the will factor of overconfidence and negligence. This will factor is also a factor that does not require the judicial organs to take the initiative to prove.

The fault of overconfidence is similar to indirect intention. For example, both of them are aware of the possibility of harmful results, and they don't want harmful results to happen, but the difference between them is obvious. In essence, indirect intention reflects the positive contempt attitude towards legitimate rights and interests, while overconfidence reflects the negative unprotected attitude towards legitimate rights and interests. This essential difference is reflected in their own cognitive factors and will factors. First of all, indirect intention is to let the harmful result happen, and the occurrence of the result conforms to the will of the actor; The mistake of overconfidence is to hope that the harmful result will not happen, and the result will go against the will of the actor. Secondly, the indirect intentional actor carried out the act in order to achieve other intentions, subjectively without considering whether it can avoid the occurrence of harmful results, and objectively without taking measures to avoid the occurrence of harmful results; An overconfident and negligent actor carries out his own behavior because he can avoid the occurrence of harmful results. In fact, he has taken measures to avoid it. Finally, indirect intention is to "know" the possibility of harmful results; The mistake of overconfidence lies in "foreseeing" the possibility of harmful results. This shows that indirect intentional actors are more likely to achieve results. In this sense, probability theory is of referential significance.