Character,purpose, and criminal responsibility

This paper explores analyzing criminal responsibility from the Humean position that blame is for character traits. If untoward acts indicate undesirable character traits, then the agent is blameworthy; if they do not, then the actor is not blameworthy — he has an excuse. A distinctive feature of this approach is that that voluntariness of acts is irrelevant to determining blameworthiness.This analysis is then applied to a variety of issues in criminal law. Mens supports inferences to character traits, and the Humean approach provides a reason for rejeting strict criminal liability. The Humean approach also helps resolve a number of issues about attempts, such as punishment for impossible attempts and the defense of abandonment. It also supports the broad outlines of the defense of mistake and provides a third alternative in the Wooton-Hart debate over punishment and treatment.     

Non-Tracing Cases of Culpable Ignorance

Recent writers on negligence and culpable ignorance have argued that there are two kinds of culpable ignorance: tracing cases, in which the agent’s ignorance traces back to some culpable act or omission of hers in the past that led to the current act, which therefore arguably inherits the culpability of that earlier failure; and non-tracing cases, in which there is no such earlier failure, so the agent’s current state of ignorance must be culpable in its own right. An unusual but intriguing justification for blaming agents in non-tracing cases is provided by Attributionism, which holds that we are as blameworthy for our non-voluntary emotional reactions, spontaneous attitudes, and the ensuing patterns of awareness as we are for our voluntary actions. The Attributionist explanation for why some non-tracing cases involve culpability is an appealing one, even though it has limited scope. After providing a deeper account of why we should take the Attributionist position seriously, I use recent psychological research to argue for a new account of the conditions under which agents are culpable for straightforward instances of blameworthy acts. That account is extended to blameworthiness for non-voluntary responses. I conclude that even when the agent’s failure to notice arises from a nonvoluntary objectionable attitude, very few such cases are ones in which Attributionism implies that the agent is blameworthy for her act.     

信赖原则及其在过失犯罪中的运用

信赖原则在过失犯罪理论中占据重要的地位 ,它是传统过失犯理论适应发展变化了的现实生活需要的必然结果。信赖原则对过失犯罪的认定、对过失犯罪行为人刑事责任的承担等具有重要的理论和实践意义。     

Punishing the Awkward, the Stupid, the Weak, and the Selfish: The Culpability of Negligence

Negligence is a problematic basis for being morally blamed and punished for having caused some harm, because in such cases there is no choice to cause or allow—or risk causing or allowing—such harm to occur. The standard theories as to why inadvertent risk creation can be blameworthy despite the lack of culpable choice are that in such cases there is blame for: (1) an unexercised capacity to have adverted to the risk; (2) a defect in character explaining why one did not advert to the risk; (3) culpably acquiring or failing to rid oneself of these defects of character at some earlier time; (4) flawed use of those practical reasoning capacities that make one the person one is; or (5) chosen violation of per se rules about known precautions. Although each of these five theories can justify blame in some cases of negligence, none can justify blame in all cases intuitively thought to be cases of negligence, nor can any of these five theories show why inadvertent creation of an unreasonable risk, pure and simple, can be blameworthy.     

注意规范保护目的与交通过失犯的成立

交通过失犯的本质应是结果回避义务,判断该义务之有无应以预见因果关系为内容的结果预见可能性为前提;注意规范保护目的是判断此种因果关系成立与否的理论,只有当行为人违反了注意规范保护目的而致损害法益结果发生时才能成立交通过失犯。注意规范保护目的是以作为刑法规范下位规则的交通法规为基础的可普遍适用于交通过失犯的判断标准,它属于交通过失犯中的违法要素,使用它无须通过客观归责理论。注意规范保护目的理论能合理限定交通过失犯的成立范围,有效克服我国司法实践中普遍存在的以交通事故责任书直接作为刑法上交通过失犯成立依据的不妥做法。     

医师注意义务的概念及其与医疗过失行为的关系--医师的注意义务系列研究(1)

医疗过失问题,是医患纠纷的焦点.医师的过失行为本质是一种客观过失,是对医师注意义务的违反,因为任何医师在自己从事特定的医疗行为时都必须达到相应的医疗水准.医师的注意义务是指医师在医疗行为时依据法律、法规、规章制度和具体操作规程,以及职务和业务上的习惯和常理、接受期约或委托的要求等保持足够的小心谨慎,以预见医疗行为的结果和避免损害结果发生的义务.     

行政法规范之违反与过失实行行为之认定——基于新过失论的阐释

讨论行政法规范之违反与过失实行行为之认定的关系,对于我国过失犯罪,特别是业务过失犯罪的认定,有重大意义。对此,应当从不同的过失犯构造理论出发,做体系性思考。立足于行为无价值的新过失论,将过失实行行为定义为违反结果回避义务,不仅能合理限制过失不法的范围,理论立场上也更为首尾一贯;而且通过注意义务的类型化,更能贯彻刑法的自由保障功能和法益保护功能。在新过失论的框架下,行政法规范上的义务和刑法上的注意义务在范围、性质上均有不同,但也存在相同之处:前者的危险防止义务是以定型的危险为前提而课予一般人的义务,后者则是以个案事态为前提而课予(处于行为人地位的)一般人的义务。违反不以避免构成要件结果为指向的行政法规范上的义务,并不构成对刑法上注意义务的违反。而违反以避免构成要件结果为指向的行政法规范上的义务,如果该义务对于个案中的结果回避是必要的或不足的,则构成对刑法上注意义务的违反;如果该义务对于个案中的结果回避是不必要的、可替代的,或者会起消极作用,则不违反刑法上的注意义务。     

罪过形式的确定——刑法第15条第2款“法律有规定”的含义

确定具体犯罪的罪过形式时,不能以“事实上能否出于过失”的归纳取代“法律有无规定”的判断,而应当充分考虑并贯彻刑法第15条第2款“过失犯罪,法律有规定的才负刑事责任”的规定。将某种犯罪确定为过失犯罪的法定标准,是法律有文理规定。根据尊重人权主义的原理,对于法益侵害并非严重的行为,不宜确定为过失犯罪;按照责任主义原理,不能出现某种犯罪只能由过失构成而不能由故意构成的局面;依循刑法的谦抑性原理,罪过形式的确定,不能以其他法领域规定的过错形式为标准。     

共同过失犯罪的概念及特征

共同过失犯罪,是指负有共同注意义务的二个以上的行为人,由于共同的不注意,共同实施或促成了违反共同注意义务的行为,造成危害结果发生的一种共同犯罪形态。过失教唆犯、过失帮助犯能够成立共犯,即使在立法中予以确认也不会导致处罚范围的扩大和刑法谦抑原则的违反。在共同过失犯罪中,数人实施或促成了违反共同注意义务的共同行为,并且数个行为人都负有防止危害结果发生的共同注意义务,导致了危害结果的发生;在主观方面,各行为人在主观上都是过失,各行为人对危害结果所抱的心理态度也基本相同。     

The Juror,the Citizen,and the Human Being: The Presumption of Innocence and the Burden of Judgment

In this essay, I suggest that the criminal trial is not only about the guilt or innocence of the defendant, but also about the character and growth of the jurors and the communities they represent. In earlier work, I have considered the potential impact of law and politics on the character of citizens, and thus on the capacity of citizens to thrive—to live full and rich human lives. Regarding the jury, I have argued that aspects of criminal trial procedure work to fix in jurors a sense of agency in and responsibility for verdicts of conviction. Here, I draw on those ideas with respect to the presumption of innocence. I suggest that the presumption of innocence works not primarily as legal rule, but rather as a moral framing device—a sort of moral discomfort device—encouraging jurors to feel and bear the weight of what they do. I offer an account of character development in which virtues are conceived of not merely as modes of conduct developed through habituation and practice, but also as capacities and ways of being developed in part through understanding and experience. The criminal trial, framed by the presumption of innocence, can be an experience through which jurors and their communities, by learning what it means and feels like to carry a certain sort of moral weight, may engender a certain set of moral strengths—strengths valuable to them not just as jurors, but also as citizens, and as human beings.     

Balancing public health and practitioner accountability in cases of medical manslaughter: reconsidering the tests for criminal negligence-related offences in Australia after R v Patel

In 2010 Dr Jayant Patel was convicted of several offences on the basis of criminal negligence. Following the Queensland Court of Appeal's 2011 endorsement of the trial judge's decision, the case provides a timely opportunity to review prosecutions for medical negligence criminal offences throughout Australia and to critically examine the tests in assessing whether the balance has been correctly struck. The author argues that the thresholds required for prosecutions for criminal negligence for medical manslaughter are problematic and unduly onerous, and do not adequately strike the balance between the utilitarian value in health care and patient safety, on the one hand, and practitioner accountability and deterrence, on the other. This article considers reforms to remedy the imbalance, including a reformulation of the Criminal Code (Qld) and common law thresholds, proposals for the enactment of a separate offence of criminally negligent manslaughter and the utilisation of corporate prosecutions for manslaughter liability to broaden accountability in health care and promote patient safety on a systemic level.     

业务过失的刑法惩处不必重于普通过失

业务过失的刑法惩处重于普通过失是传统过失犯领域中的铁则,但业务范围的持续扩张使得业务过失与普通过失的边界不清,这造成了这一铁则在司法适用上的异议。更为关键的是,这一铁则的正当性在遭受批判后,为之辩解和反驳的观点始终给不出有说服力的理由。业务过失(犯罪)是我国刑法中的重要类型,但我国刑法未遵守这一铁则,立法者根据现代业务过失(犯罪)的特点作出了契合我国实际的规定,这使得它的法定刑轻重有度。因此,以这一铁则为标尺来评判我国刑法中的业务过失(犯罪)规定并不妥当。并且,业务过失的惩处重于普通过失不是我国业务过失犯罪刑事立法的发展方向。     

SELF-CONTROL, CRIMINAL MOTIVATION AND DETERRENCE: AN INVESTIGATION USING RUSSIAN RESPONDENTS

With data from respondents in Nizhni Novgorod, Russia, we address the generality of self-control theory. We also assess two hypotheses. The first focuses on the attractiveness of criminal acts, that is, motivation toward crime. The second concerns the contention that the mediating link between self-control and criminal conduct is the failure of those with less self-control to anticipate the long-term costs of misbehavior. Although the magnitude of associations between self-control and indicators of criminal behavior is about the same in this study as it is in others, which suggests that the theory is not culturally bound, those associations are largely overshadowed by criminal attraction. Consistent with that, failure to anticipate costly long-term consequences does not appear to be the mediating link between self-control and criminal behavior: the evidence shows no tendency for sanction fear to be greater among those with greater self-control. In fact, sanction fear is modestly and significantly related to the crime measures independent of self-control, though sanction fear also appears to be influenced by criminal attraction. The results suggest that in the production of criminal behavior, motivation may be more important than controls inhibiting criminal impulses.     

Punishment and Bad Upbringing

This article examines whether bad upbringing (or what is sometimes called a “rotten social background”) affects just or deserved punishment. There are two possible rationales for this claim. First, it may be argued that an offender’s blameworthiness for his choice to offend is reduced if he had a bad upbringing; second, it may be argued that fairness requires us to impose a less severe punitive burden on an offender with a bad upbringing, even if he is no less blameworthy for his crime. The article rejects both of these rationales.     

Culture, Autonomy and Djulibinyamurr: Individual and Community in the Construction of Rights to Traditional Designs

The remoteness enquiry in negligence, which serves to exclude the liability of defendants for harmful consequences that their careless conduct caused, but for which it seems unfair to penalise them, has long been beset by uncertainty. Indeed, a common view is that this area of the law can be explained only by reference to diffuse considerations of 'legal policy'. This paper, however, argues that the remoteness enquiry represents a principled response to a problem that can arise, at a deep level, in ascribing a harmful outcome to the negligent exercise of individual agency. The relevant problem concerns the possible mismatch between the hypothetical 'risk-claim' in virtue of which conduct was faulty and the causal set that subsequently materialised for harm. The 'revised risk theory' that emerges from this analysis accounts for the majority of remoteness determinations. However, a few exceptions are also considered where 'policy', in a restricted sense, operates to extend or curtail a negligent agent's legal responsibility.     

论过失危险行为应当犯罪化

传统的过失犯罪都是实害犯,而随着科技的迅猛发展和现代化器械的广泛应用,过失犯罪危险化已受到学者的关注,本文论证了过失危险行为犯罪化的理论基础不仅仅是主观过错,更在于其所具有的社会危害性;过失危险行为犯罪化的现实意义在于实现刑罚的目的。另外,过失危险行为犯罪化只应存在于危害公共安全的犯罪中,在设置刑罚时应遵循谦抑原则。     

Rational Choice,Agency and Thoughtfully Reflective Decision Making: The Short and Long-Term Consequences of Making Good Choices

Notions of human agency are a prominent part of some but not all criminological theories. For example, McCarthy (Annu Rev Sociol 28:417–442, 2002) argues that rational choice theory, which allows persons great involvement in decision making, is more congenial with notions of human agency than others. It would appear from his argument that rational choice theory offers fertile ground to develop a clearly defined role for human agency in criminal behavior. In this paper we have taken up McCarthy’s view and argue that an important part of what is human agency consists of thoughtfully reflective decision making. We outline four elements of thoughtfully reflective decision making, and claim that it is a characteristic that varies both across persons and within persons over time. It is in short the process by which good decisions are made because by using this process one increases the likelihood that choices made will be consistent with preferences. We develop a clear operational definition of thoughtfully reflective decision making and link it to the concept of human agency. We also articulate testable hypotheses about the short-term and longer-term implications of thoughtfully reflective decision making. We conclude with a discussion of what we think lies ahead for future conceptual and empirical work.

The Strictness of Strict Liability

This article conceptualizes what strict liability is in the criminal law. Four properties are found to be individually necessary, only jointly sufficient, for there to be the kind of moral blameworthiness that must underlie any just punishment: prima facie wrongdoing, absence of justification, prima facie culpability, and absence of excuse. Whenever criminal liability is imposed without the presence of one or more of these properties, the liabuility is said to be strict.     

论英美刑法中的犯罪疏忽

一、犯罪疏忽的概念和特征(一 )犯罪疏忽 (CriminalNegligence)的含义英国法律委员会在其工作文件中对犯罪疏忽是做如下定义的 ,“如果某人没能象作为一个正常人在他的情况下那样 ,对其行为给予注意 ,发挥技能或者进行预见 ,那么 ,他就是疏忽的。”① 也就是说 ,疏忽是行为人有责任履行某种注意标准 ,但没能达到这种标准 ;以及 ,行为人没能像正常人或者谨慎的人那样 ,在法律要求实施合理行为的情况下合理地实施其行为。因此 ,“疏忽是关于行为标准的要求 ,含有疏于思考、而非心理状态的内容 ,很少成为严重刑事犯罪的要素。”②美国法学会在…     

Depression, responsibility, and criminal defenses

The concepts of voluntary action, agency, free will, and responsibility, while central to moral and legal institutions, are generally poorly understood. Philosophers of law such as H.L.A. Hart, Joel Feinberg, and Robert F. Schopp have contributed significantly to understanding of these concepts through their work on the foundations of criminal defenses, including excuses based on mental illness. In this paper, I summarize and present their valuable insights, in the context of an argument (influenced by personal experience) that clinical depression, even when non-psychotic, may in some cases constitute a legitimate excuse for criminal or otherwise immoral failures to act.