Theories on Negligent Co-perpetrators: An overview II
HLJ_45-1_158.pdf 280 KB
On the issue of the existence of negligence co-perpetrators, positive theories and negative theories have been formed. The development of the theories on negligent co-perpetrators has generally gone through four phases, during which the positive theory and the negative theory oppose each other all the time and prevail over each other alternately. This article following on from the previous one, discusses the positive theories on co-perpetrators, to explore the evolution and present situation of theoretical studies of negligent co-perpetrators. Based on the old theory of negligence, the doctrine of jointness in crime denies the existence of negligent co-perpetrators on the ground that negligent offenders lack common consciousness subjectively. In contrast, with the new theory of negligent offenses, the essence of a negligent offense is regarded as a violation of a duty of care, and it becomes possible to acknowledge negligent co-perpetrators on the basis of the doctrine of violation of a duty of care. However, the discussion on negligent co-perpetrators is still based on the structure of intentional co-perpetrators. Doctrines arguing for the existence of jointness in subjective unlawfulness among negligent offenders through “mental causation” and has failed to explore the establishment elements of negligent co-perpetrators based on the structure of a negligent offense itself.