On Malpractice of Criminal Law in the Continental Legal System

The recognition and the will are combined in the concept of negligence in China's Criminal Law to analyze and determine what is a negligence. In the United States Model Penal Code or German criminal law theory, the only factor "recognition" is used to define the concept of negligence. It is necessary to analyze the theory about the malpractice of Criminal Law in the Continental Legal System. The care obligation and the care ability are the two parts of malpractice in German criminal law. The crime constitution of malpractice depends on the situation that the person may violate the care obligation such as the obligation of foresight and the avoidance of the harmful consequences. The later obligation is especially more important, because the obligation of the avoidance of the harmful consequences is a key to judge how the crime constitution of malpractice is built. The Chinese traditional theory on criminal negligence is on the basis of "Four Elements". However, in practice it lacks of viable normative criteria. Based on the concept of human rights, our legislative and theoretical research should be more active in the interpretation and analysis of the objective fact on "fault attribution" in criminal negligence.