重大过失理论的构建

传统大陆民法理论关于重大过失的解说既无法提供明确的认定方法,又内在地欠缺解释力。重大过失应当是一种有认识的过失,但同时须在客观上制造了巨大的危险。它是一种偏主观的、行为人很大程度上可避免的过错,是一种具有较强道德可责难性的过错。它是介于故意与普通过失之间、更接近于故意的一种独立过错类型。有认识的认定应坚持知道与有理由知道两级分类,并有效运用司法推论和立法推定。危险巨大性的认定主要涉及损害可能性与损害程度两方面判断。重大过失的法律效果原则上与故意相同,但有例外。     

Recklessness Without the Risk

Criminal Law and Philosophy - Risk is at the core of criminal recklessness, but its exact constitution comes into focus only in unusual cases. In rethinking criminal law, Larry Alexander and...     

The Reasonableness in Recklessness

Criminal Law and Philosophy - Recklessness involves unreasonable/unjustified risk-taking. The argument here is that recklessness in the criminal law is best understood as nevertheless containing an...     

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...     

Caldwell Recklessness is Dead, Long Live Mens Rea's Fecklessness

The House of Lords has recently reiterated its preference for a purely subjective doctrine of mens rea by overruling the Caldwell test of recklessness. It is argued that while the subjective basis of mens rea is essential to ensure that it is the accused's culpability that is being judged, courts must be prepared to accept that there is a residual objective element that is part of mens rea and it is that which determines whether the accused is morally blameworthy. Unless this is formally accepted, mens rea will never be restored to its proper normative role; that of determining whether the 'mens was rea'. ¹     

The Denominator Blindness Effect: Accident Frequencies and the Misjudgment of Recklessness

People seriously misjudge accident risks because they routinelyneglect relevant information about exposure. Such risk judgmentsaffect both personal and public policy decisions (e.g., choiceof a transport mode) but also play a vital role in legal determinations,such as assessments of recklessness. Experimental evidence fora sample of 422 jury-eligible adults indicates that people incorporateinformation on the number of accidents, which is the numeratorof the risk frequency calculation. However, they appear blindto information on exposure, such as the scale of a firm's operations,which is the risk frequency denominator. Hence, the actual observedaccident frequency of accidents/exposure is not influential.     

Risk-Taking,Recklessness and HIV Transmission: Accommodating the Reality of Sexual Transmission of HIV Within a Justifiable Approach to Criminal Liability

This paper examines the issue of justifiability of risk-taking with regard to the transmission of HIV. It considers a number of factors, such as seriousness of risk, likelihood of risk occurring, social utility of conduct involved, ability to use precautions and victim awareness of the risk and willingness to accept it, which combined help to determine whether the taking of a risk is reasonable or not. It argues that by considering the issue of justifiability in this way, it is possible to accommodate the wider social, psychological and public health realities of HIV. It further argues that a criminal law which fails to take account of such considerations is not only overly broad in its application but ultimately risks punishing those who are not in fact deserving of punishment. I would like to thank the two anonymous reviewers for their comments on an earlier draft.