Crimes of Negligence: Attempting and Succeeding

In chapter 6 of Attempts, Gideon Yaffe defends the thesis that it is ??possible to attempt crimes of negligence?? (2010, p. 173). I am persuaded that he is right about this, provided that ??attempt crimes of negligence?? is read as (potentially misleading) shorthand for ??attempt to bring it about that we commit crimes of negligence.?? But I find certain parts of his defense unpersuasive. My discussion of those parts of his argument motivates the following thesis: Not only can one attempt to bring it about that one commits a crime of negligence, but the attempt can be successful as well.     

Severe Mental Illness,Somatic Delusions,and Attempted Mass Murder

A case of an attempted mass shooting at a large psychiatric hospital in the United States by a 30‐year‐old male with severe mental illness, somatic delusions, and exceptional access to healthcare professionals is reported. Six persons were shot, one died at the scene, and the shooter was then killed by the police. Data were gathered from court documents and media accounts. An analysis of the shooter's psychiatric history, his interactions with healthcare professionals, and communications prior to the shooting suggest a rare form of mass murder, a random attack by a documented psychotic and delusional individual suffering with somatic delusions. Despite his being psychotic, the killer planned the attack and made a direct threat 1 month prior to the shootings. This case highlights problems with the healthcare system, indicating that it might be ill equipped to appropriately deal with severe mental illness.     

Restoring Trust: Plachimada,the Human Trust and Anticipatory Negligence as Restorative Justice

This paper argues for proleptic restorative justice in the area of the environment in the form of a ‘human trust’. Drawing inspiration from the Roman public trust, the human trust insists that some ‘goods’ are so important that they can neither be owned nor spoiled; rather, they must be protected. In order to explain this model, water rights will be used as an example, specifically, the case of Plachimada’s battle with Coca-Cola over the use of local ground water in Kerala, India. This case allows consideration of the protection of water for people, the ongoing privatization of natural resources, and the strength of property rights. The human trust questions the merit of seeing the environment as property or in economic terms. Moreover, the human trust urges proleptic restorative justice, as in the case of the environment, restoration after the fact is often impossible. The potential harm is so extreme that one can argue for an action in tort of ‘anticipatory negligence’, a development of the quia timet injunction.     

The Negligence Standard: Political Not Metaphysical

This contribution distinguishes two kinds of responsibility: the basic (or ‘metaphysical’) kind that we all inescapably have as functioning human beings; and the assignable (or ‘political’) kind that connects each of us with some particular tasks, and not with others. Having explored some differences between the two, and in particular the role of law's authority in connection with each, the discussion turns to the negligence standard, especially but not only as it figures in tort law. Recently, several philosophers have attempted to find a role for the negligence standard in the metaphysics of basic responsibility. This contribution resists that development and stands up for the traditional lawyer's view that the negligence standard belongs to the pliable politics of assignable responsibility. Basic responsibility, it is argued, is fundamentally strict.     

Epistemic Responsibility and Criminal Negligence

Criminal Law and Philosophy - We seem to be responsible for our beliefs in a distinctively epistemic way. We often hold each other to account for the beliefs that we hold. We do this by criticising...     

意外事件与过失之界分——试析穆志祥被控过失致人死亡案

意外事件与过失犯罪二者的法律性质在特定情形下不易界分.穆志祥违规改装车辆,导致被害人意外死亡,被控过失致人死亡.被告人穆志祥的行为不是疏忽大意的过失犯罪所要求的构成要件行为,其行为符合刑法关于过于自信过失的构成要件事实之规定,应认定为过失致人死亡罪.     

Special Issue on Recklessness and Negligence

Criminal Law and Philosophy - This paper introduces the Special Issue on Recklessness and Negligence. It highlights the main issues and controversies that surround these concepts and then briefly...     

过失相抵与无过错责任

过失相抵本质上应解释为原因力相抵,故以自己责任原则为据,无过错侵权责任领域适用过失相抵并不存在逻辑障碍,亦无损于其特殊政策价值。过失相抵在无过错责任领域的适用,不应规定以受害人存在重大过失为一般条件,但在人身损害赔偿中的过失相抵,可以作此规定。对于非完全行为能力受害人损害赔偿的过失相抵,可以规定加害人最低赔偿数额。至于无过错责任加害人的附加过错不应成为评估责任大小的考量因素,但若加害人系属故意或重大过失而受害人仅有一般过失,应排除过失相抵的适用。     

Taking Responsibility for Negligence and Non-negligence

Negligence reminds us that we often do and cause things unawares, occasionally with grave results. Given the lack of foresight and intention, some authors argue that people should not be judged culpable for negligence. This paper offers a contrasting view. It argues that gaining control (over our agency, over a risky world) is itself a fundamental responsibility, with both collective and individual elements. The paper underlines both sides, focussing on how they relate as we ascribe responsibility or culpability. Following the introduction, Section 2 (“Culpability and Control: The Negligence Sceptics”) argues that conscious awareness is neither necessary nor sufficient for control. Control is not a property of deliberate choice, so much as a practical achievement. Section 3 (“Non-negligence as a Shared Task”) stresses the collective aspects of non-negligence: creating knowledge about risks, structuring environments to guard against them, and developing standards of care. Failings in the collective task, rather than lack of individual control, mean it can often be unfair to pin culpability on a single individual. Section 4 (“Culpability for Negligence Revisited”) suggests that a basic duty of a responsible person is to acknowledge the ways in which we may do more or less than we mean to, often in ways that create risks. It then sketches an approach to culpability as part of a collective exercise: as we take responsibility for standards of care, and for our own and others’ agency.

     

Negligence and Human Rights Law: The Case for Separate Development

A number of judges and academics have argued in favour of the convergence of negligence law with human rights law. By contrast, the thesis of this article is that the two legal orders should develop independently, so that for the most part the law of negligence ought not to be affected by human rights considerations. It is argued that the case for convergence is based on two false assumptions, namely that human rights law and negligence law perform similar functions within our legal order and that the norms of human rights law are more fundamental than the norms encapsulated in negligence law. It is also argued that convergence would undermine the coherence of negligence law. Ultimately, the case for separate development rests on the desirability of recognising public law and private law as autonomous normative systems with their own distinctive rationales, concepts and core principles.     

监督过失理论及其对过失主体的限定——以法释[2007]5号为中心

监督过失理论虽然偏重于结果避免义务,但是仍然必须兼顾结果预见可能性与信赖原则的适用。监督过失中的监督关系包括了从属性的监督关系与平行性的监督关系,因此应该根据监督关系的纵横两大层面来合理界定监督义务的过失主体。[2007]5号司法解释对监督过失理论进行了大量的适用,但是在对"强令他人违章冒险作业"进行内涵界定时遗漏了平行关系的监督主体,因而有欠周全,应该加以补充;对过失共犯的非直接承认导致了监督主体在刑罚分配上的模糊性,应该明确以共犯成立为基础进行责任的分担;风险社会导致监督主体适用有扩大倾向的同时,应通过信赖原则进行相应的收缩与限制。