Criminal law on indirect intentional offences and overconfident negligence

First of all: indirect intentional situation: this is an ordinary courtyard wall, if, you obviously heard the sound of people moving outside the wall, you didn't care so much, picked up a brick and threw it, this is indirect intentional (you know that there are people, and you know, it is a brick thrown out, it will hurt people or even kill them, and you still do it - knowing + letting go = indirect intention).

The fault of overconfidence: It's still the courtyard wall, you hear someone walk by, and after 5 minutes, there is no sound, you pick up a brick, throw it out, and as a result, that person against the wall again... You have foreseen someone and know that someone is passing by, but, based on your experience, you think that the person is gone - after five minutes there is no sound, so you throw out the bricks - already foreseen + gullible to think that it can be avoided = the fault of overconfidence).

There is also a situation called an accident.

Now, I'll tell you about it.

Unexpected Event: If there is a cemetery outside the wall, it will be eerie during the day, and besides, it is twelve o'clock in the middle of the night (it will be haunted...) So you think 10,000 percent, there is no one. So without thinking about it, I picked up the brick and threw it outside the wall, and as a result, I stoned the person to death.

If you look at Zhonghe's books and think about them carefully, I believe that these are floating clouds.

I think it is indirect intentional, because there are no measures to avoid it in the case, the case says that no one usually walks outside the wall, that is, it is still possible for someone to walk, as long as there is this ** possibility, it is indirect intentional, and the topic is also unclear, such as what is outside your wall, for example, there is a remote path outside your wall, and no one usually walks, but it is still possible, there is a ** possibility; But if there is a minefield or a cliff outside the wall, there is no possibility at all, it is an accident, or if there is a river 3 meters away from the wall, you are confident that you can throw it into the river, but if you lose someone's head, you are confident that you are negligent.

It is the negligence of overconfidence, and the actor of overconfident negligence has a vague understanding of the harmful results

Indirect intentional and overconfident negligence differ in both cognitive and volitional factors. The first is the cognitive factor, although the negligence of indirect intention and overconfidence is to foresee the possibility of the harmful result of the act, but the estimation of whether the possibility of Yinshi will be transformed into reality is different, and the psychology of indirect intention does not have a wrong understanding and estimation of the possibility of transforming into reality, and does not think that this possibility will not be transformed into reality, so in the case of the possibility being transformed into reality, that is, the occurrence of harmful results, there is no error between the actor's subjective understanding and the objective result. Subjective and objective are consistent. Although the person with this psychology also foresees the possibility of harmful results, he subjectively believes that due to his own ability, technology, experience, and some old conditions, when he carries out the act, the possibility of the occurrence of harmful results will not be transformed into reality, that is, he has a wrong understanding of the objective fact that the possibility is transformed into reality.

In the case of a harmful outcome, its subjective and objective are inconsistent. The second is the volitional factor, between.

Although both intentional and overconfident negligence do not want harmful results to occur, in-depth investigation shows that their attitudes towards harmful results are still different. Although the perpetrator of indirect intent does not want the result to occur, he does not object to the occurrence of the harmful result, so he will not rely on any conditions and measures to prevent the occurrence of the harmful result, but will let it go and deliberately allow the harmful result to occur. The actor who is overconfident and negligent not only does not want the harmful result to occur, but also does not let the harmful result occur, but hopes that the harmful result will not occur, and hopes to avoid the occurrence of the harmful result, that is, to reject and oppose the occurrence of the harmful result.

In the case of foreseeing that harmful consequences may occur in one's own conduct, the actor is still confident that he can avoid the occurrence of harmful results, and thus carries out such conduct, he must rely on certain factors that he believes can avoid the occurrence of harmful results, such as factors such as the actor's own ability, such as the actor's own ability, such as the behavioral precautions of others, and favorable factors such as objective conditions or nature.

dNegligence of overconfidence.

Article 15 of China's Criminal Law stipulates that "one should foresee that one's actions may have a result that is harmful to society, and because of negligence and failure to foresee it, or having foreseen it and believing that it could be avoided, so that such a result will occur".

Based on this, criminal law theories distinguish criminal negligence into two forms: negligence and overconfidence. Negligent negligence refers to the mental attitude of the actor who should have foreseen that his or her act might have a result harmful to society, but because of negligence, he did not foresee it, so that such a result occurred.

Overconfidence negligence refers to the mental attitude of the perpetrator who foresees that his or her behavior may have a result that is harmful to society, but is credulous enough to avoid it, so that such a result occurs.

The relationship between the two is relatively easy to understand, and the views of the criminal law theory circles are also quite consistent, that is, scholars believe that both belong to the category of criminal negligence, and both do not want or reject the occurrence of results that harm society, but because the perpetrator is seriously irresponsible, he has violated his obligation to foresee and avoid the occurrence of harmful results or to avoid the occurrence of harmful results under the condition that he has the ability to foresee and avoid the occurrence of harmful results, that is, the ability to pay attention, thus constituting a criminal negligence mentality.

The key to the distinction between the two is that negligence did not foresee the occurrence of harmful results, while overconfident negligence foresaw the occurrence of harmful results.

Therefore, it is extremely important to scientifically judge whether the actor has foreseen the occurrence of harmful consequences in order to distinguish negligence from overconfident negligence. As for what is meant by "foreseen", it is generally believed in criminal law theory that it means that the perpetrator has foreseen that his or her conduct may have consequences that are harmful to society.

Direct intent, the perpetrator's mental attitude of knowing that his or her conduct will inevitably or likely cause consequences that harm society and hoping that harmful results will occur, as well as allowing the consequences to occur knowing that harmful results will inevitably occur.

Indirect intent, the mental attitude of the perpetrator who clearly knows that his or her conduct may have a result harmful to society, and allows such a result to occur.

Criminal negligence refers to the subjective psychological attitude that the perpetrator should have foreseen that his or her conduct might have a result that would harm society, but did not foresee it because of negligence, or had foreseen it and believed that it could have been avoided, resulting in a sign of harm to society. From the perspective of the content of the crime, criminal negligence has two characteristics: (1) In terms of the element of consciousness, the perpetrator should have foreseen that his behavior might have a result that would harm society, but he did not foresee it due to negligence, or he had foreseen it but could have avoided it with credulity.

2) In terms of volitional factors, the actor has a fundamentally negative attitude towards the occurrence of harmful results. According to the characteristics of the content of the crime, the criminal law theory divides criminal negligence into negligent negligence and overconfident negligence.

Negligent negligence refers to the subjective mental attitude that the actor should have foreseen that his or her conduct might have a harmful result for society, but because of negligence, he did not foresee it, resulting in a harmful result. Negligent negligence has two characteristics: (1) "should have been foreseen" and "not foreseen"; (2) It is fundamentally opposed to the occurrence of harmful results.

The first of these features, "failure to foresee", is the main demarcation between negligent negligence and other forms of sin.

When determining the actor's cognitive standards, they shall first be determined on the basis of the actor's own level of intelligence, that is, on the basis of the actor's own subjective conditions, including the level of knowledge, intellectual status, work ability, professional level, and so forth. However, it is necessary to pay attention to the influence of the objective circumstances at the time of the act, so as to accurately determine whether the actor should have and could have recognized the occurrence of the harmful result at that time. With the increasing progress of science and technology and the increasing complexity of social and economic life, people's cognitive obligations will become more and more extensive, and they will be more and more limited by objective conditions.

Therefore, in judicial practice, only by paying attention to the comprehensive analysis of subjective conditions and objective conditions, and the specific analysis of specific problems, can we correctly understand the guilt.

The negligence of overconfidence refers to the subjective mental attitude of the perpetrator who has foreseen that his or her behavior may have a result that is harmful to society, but is credulous enough to avoid it, so that such a result will occur. The fault of overconfidence has two characteristics: (1) "foreseen" and "credulous can be avoided"; (2) The occurrence of harmful results is also fundamentally opposed.

Overconfident negligence is criminally liable. It is a crime of negligence to foresee that one's own actions may have such a harmful result as a result of social harm, but one who has been negligent and has not foreseen it, or has foreseen it and is gullible enough to believe that it can be avoided, so that such a result can occur.

Legal basis] Article 15 of the Criminal Law stipulates that a person who has foreseen that his or her actions may have a result that is harmful to society, and who fails to foresee it because of negligence, or who has foreseen it and is gullible enough to avoid it, is guilty of negligence. Only those who commit crimes of negligence shall be criminally liable if the law provides for them.

Only those who are overconfident in their negligence are criminally liable if the law stipulates it. The law stipulates that a person who should foresee that one's conduct may have a result that is harmful to society, and who has foreseen it and is gullible enough to believe that it can be avoided, is guilty of negligence. For crimes of negligence, only those who are provided for by law shall be held criminally liable.

[Legal basis].Article 15 of the Criminal Code.

It is a crime of negligence to foresee that one's actions may have consequences that are harmful to society, but because of negligence and failure to foresee them, or those who have foreseen them and believe that they can avoid them, so that such a result occurs.

Only those who commit crimes of negligence shall be criminally liable if the law provides for them.

Article 16. Although the act objectively caused damage to the Zen Effect, it was not intentional or negligent, but caused by the Zen Meditation of He Chen for irresistible or unforeseeable reasons, and it was not a crime.

The perpetrator has foreseen that his or her conduct may have a result harmful to society and is credulous enough to believe that it can be avoided, so that such a harmful result has occurred, thus constituting a crime. This kind of negligence, in terms of the actor's cognitive ability, has foreseen that his own behavior may have a result that is harmful to society, but at the same time, Zao Hui has a certain luck mentality, and is gullible that such a result may not happen. Or take the car driver as an example, a driver already knows that the brakes of the car he is driving are ineffective and needs to be repaired, but because he is in a hurry to run the car and runs the business, and thinks that his driving skills are superb, he can't have an accident, and as a result, he encounters an emergency and hits the person to death.

As a driver, the failure of the car's brakes may cause an accident, which should be foreseen, but the driver thinks that he is highly skilled, has a fluke mentality, and causes harm as a result, and should be responsible for the crime of causing a traffic accident. It should be noted that the criminal law provides for the crime of negligence, which is very different from the crime of intention. First, there are great restrictions on the conditions for constituting a crime of negligence, and only if a negligent act causes a result that seriously endangers society, the criminal law stipulates that it is a crime; if it does not cause actual harmful results, although it is a negligent act, it is not a crime and can be subject to education or administrative punishment.

In intentional crimes, many crimes constitute crimes as long as the act is committed, such as if the perpetrator commits an act of homicide, and although for some reason he does not succeed, he should also be liable for attempted homicide. Second, in terms of punishment, in view of the fact that the subjective malice of a negligent crime is less than that of an intentional crime, the criminal law provides that the punishment for a negligent crime is lighter than the punishment for an intentional crime. In real life, we can often see that the crime is caused by intention, because in most cases, intentional homicide and intentional injury are very clear to tell everyone that he is subjectively intentional, but there are also some traffic accidents and other behaviors that are caused by negligence and negligence.

Article 15 of the Criminal Law: A person who should foresee that his or her conduct might lead to a result that is harmful to society, but who did not foresee it because of negligence, or who had foreseen it and believed that it could have been avoided, resulting in such a result, is guilty of a crime of negligence. Only those who commit crimes of negligence shall be criminally liable if the law provides for them.

Legal Analysis: Overconfidence in the criminal trigger of negligence refers to the behavior of the perpetrator who has foreseen that his or her behavior may have a result harmful to society, but is credulous enough to avoid it, so that such a result occurs. In terms of cognitive characteristics, the negligence of overconfidence is manifested in the fact that the actor has foreseen that his behavior may have harmful consequences to society, and at the same time he is gullible enough to avoid harmful results.

Legal basis: Article 15 of the Criminal Law of the People's Republic of China It is a crime of negligence to foresee that one's own actions may have consequences that are harmful to society, and those who fail to foresee it because of negligence, or who have foreseen it and believe that it can be avoided, so that such a result occurs, is a crime of negligence. Only those who commit crimes of negligence shall be criminally liable if the law provides for them.