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table of contents

1. the vague concept of “road”

ii. the complex logical relationship between special law and general law

3. difficulty in determining causal relationship

iv. the jury system as a breakthrough

almost every negligent crime is difficult to identify. many times, i have to admit that my rationality is limited and there are many gaps in my professional knowledge.

the vague concept of "road"

i recall several cases of negligent crimes that i encountered many years ago.

the first case was a case i took on more than 20 years ago when i was just starting my part-time legal career. that day, the director told me that there was a case and hoped that i could handle it. i instantly became energetic, put on a suit that i hadn't worn for a long time, turned on the air conditioner, and went to the law firm.

after seeing the client, my heart sank. because he was dressed too plainly, when he shook my hand with his calloused hands, i knew that i had come here for nothing again. this was a traffic accident case. i asked him, what car hit it, a mercedes or a bmw? the client told me that it was a tractor. my heart sank to the bottom. i could only make the best of it.

i listened to his story. his family lived in an urban-rural junction, where many families lived in a large, privately built compound. there was a tractor parked in the compound, and his two- or three-year-old child was playing in the compound when the driver accidentally knocked him down while reversing. the driver then fled. the child was paralyzed from the waist down and became disabled for life.

the father wanted to bring the driver to justice and told me that he would seek justice no matter how much it cost. i was still young and emotional at that time, so i decided to provide him with free legal aid. when i said i didn't want any money, the father's eyes became wet and he said no, no, he must pay. i said, let me write a case application for you and you give it to the public security agency. anyway, i have nothing to do and i can write things quickly.

i know that this type of case is not easy to handle because traffic accidents that cause serious injuries generally do not constitute a crime. in the case of hit-and-run, it does not constitute a traffic accident crime unless it can be proved that the driver bears the main responsibility or all the responsibility.so i think the key to the problem lies in whether the yard where you live belongs to the road.if it is not a road, then it does not need to be handled as a traffic accident crime, and the provisions of the crime of negligent homicide can be applied.

according to the road traffic safety law, "road" refers to highways, urban roads, and places under the jurisdiction of units but where social motor vehicles are allowed to pass, including squares, public parking lots and other places for public access. so i wrote him a complaint, arguing that the driver had committed the crime of negligently causing serious injury. a few months later, the father called me and said that the case had been filed and the driver was wanted. although he had not yet been brought to justice, he was very grateful to me.

many years later, a similar case occurred. the parents of a student took a taxi, and the taxi collided with a truck, killing the taxi driver and the passenger. the appraisal concluded that the responsibility of the truck driver and the taxi driver was equal.

according to judicial interpretation, if a traffic accident causes one death, the person must bear the main or full responsibility for the accident to constitute a crime, but if it causes three deaths, even if they bear equal responsibility for the accident, it constitutes a traffic accident crime. it seems that there is no problem with this case constituting a traffic accident crime, but there is a cheng yaojin, that is, the road administration department. it turns out that this road has not yet been officially opened for use, so the traffic police's appraisal conclusion is that all three parties bear equal responsibility, so the truck driver's responsibility is one-third, not one-half.

in the end, the driver was not held criminally responsible for the traffic accident. the student consulted me. my initial opinion was that this did not constitute a traffic accident, but since the road was not open for use, it should not be handled according to the provisions of the traffic accident crime, but should directly apply the provisions of the crime of negligent homicide, and that crime does not need to consider the issue of responsibility allocation.

however, if this is the case, logically speaking, the staff of the highway construction unit and other units may also be guilty of major responsibility accidents. of course, i don’t know how this case was finally handled, and the student didn’t contact me again.

the complex logical relationship between special law and general law

because transportation has certain dangers, but such dangers are allowed by social life. the law cannot prohibit all dangers, otherwise technology cannot develop. this is why the crime of traffic accident must follow the theory of risk distribution and balance the conflict of interests between drivers and pedestrians. as i just said, if a traffic accident causes one person's death, if the person bears equal or secondary responsibility, it does not constitute a traffic accident crime.

however, some people may think that since the crime of causing a traffic accident is a special type of the crime of causing serious injury by negligence and the crime of causing death by negligence, if the perpetrator violates traffic regulations and causes serious injury or death to others, and bears equal or secondary responsibility for the accident, this fully meets the constituent elements of the crime of causing serious injury by negligence and the crime of causing death by negligence, but does not constitute the crime of causing a traffic accident.

since common law and special law overlap within the scope of common law, if it does not constitute a special law such as traffic accident, then can't the common law crime of negligent homicide or negligent grievous bodily harm be applied as a cover? this view obviously ignores the issue of risk distribution in traffic accident crimes, and does not pay attention to the special phenomenon of traffic accident crimes.

this is why articles 233 and 235 of the criminal law clearly stipulate that the crime of negligent homicide and the crime of negligent grievance causing serious injury "if otherwise provided in this law, follow the provisions." in other words, crimes occurring in the field of road traffic exclude the application of common law.

however, if it does not occur in the field of road traffic, the crime of negligently causing serious injury and negligently causing death may still be applicable. therefore, the judicial interpretation also stipulates: "if a major traffic accident occurs within the scope of public transportation management, it shall be handled in accordance with article 133 of the criminal law on traffic accident crimes and the relevant provisions of this interpretation. outside the scope of public transportation management, if driving a motor vehicle or using other means of transportation causes casualties or causes major losses to public property or other people's property, and constitutes a crime, it shall be convicted and punished in accordance with article 134 (major responsibility accident crime), article 135 (major labor safety accident crime), article 233 (negligence causing death) and other provisions of the criminal law."

however, all legal concepts are ambiguous. for a highway that is open to traffic but has not yet been completed and accepted, does it belong to a road? in fact, there is a certain controversy. the ministry of public security has a reply to a request from a certain province (document no. 259 of the ministry of public security traffic management bureau public transportation management [2000]): it is believed that vehicle accidents occurring on newly built or rebuilt highways that have not been completed and accepted do not belong to road traffic accidents as defined in the "road traffic accident handling measures". however, this document is not a judicial document. the reply of the ministry of public security has no necessary effect on criminal trials.

difficulty in determining causality

what is more complicated is that the identification of negligent crime is an eternal problem, and there is still no perfect theory. the most complicated part is the judgment of causality.

when zhang san drove his car to a certain intersection, he found rainwater manhole covers scattered on the road. however, he was not able to take measures in time because of speeding (the speed limit on this section of road was 60 kilometers per hour, and the defendant's speed was higher than 77 kilometers per hour). after the vehicle ran over the manhole cover, it lost control, causing it to rush through the isolation belt and enter the auxiliary road, colliding with the car driven by yang mou who was driving normally and liu mou who was riding a bicycle normally, resulting in 3 deaths and 2 injuries. the traffic management department determined that the defendant zhang san was fully responsible for the accident. the court later sentenced him to 3 years in prison and 3 years of probation for the crime of traffic accident.

in this case, the court held that zhang san violated traffic regulations and drove over the speed limit, which led to the accident. but the question is, how to determine whether there is a causal relationship between speeding and the accident? the defense lawyer asked for an investigative experiment. we drove at the same speed on the same road section and measured the movement trajectory of the vehicle. for example, we arranged an unmanned vehicle, or simply modeled it on a computer and ran over the manhole cover. would it be certain that there would be no accident of hitting people? would the judge accept this defense? would he agree to conduct this investigative experiment? probably not.

there is a classic case in germany, which is a must-discuss case in law schools: truck driver a wanted to overtake. according to the law, he should keep a distance of 1-1.5 meters from the roadside, but the driver did not comply with this regulation. the closest distance to cyclist b was only 75 centimeters. when overtaking, cyclist b, who was already drunk, was a little confused and suddenly turned left, so that he fell under the rear wheel of the seat and was run over by the car. afterwards, it was determined that even if the driver drove prudently and fulfilled his duty of care and kept a safe distance, the accident could still have occurred given b's drunkenness. so, should the driver be convicted of a crime of negligence?

there are three possible paths to determine the causal relationship in this case:

one is the risk escalation theoryas long as the behavior leads to danger, it is presumed that there is a causal relationship between the behavior and the result. of course, the danger here must be a danger prohibited by society, and does not include dangers tolerated by society, which are not harmful behaviors in the law.

we live in a dangerous world. danger and opportunity are two sides of the same coin. without danger, there is no opportunity. artificial intelligence, such as autonomous driving technology, is certainly dangerous, but the law cannot prohibit all dangers, only those that society cannot tolerate. but in the case of the truck driver, since the driver violated the legal norm of keeping a safe distance, he created a danger that society prohibits, which constitutes a crime.

this stance has a wide range of impact. for example, in the aforementioned case where a truck driver caused the death of three people in a taxi, the staff of highway construction units failed to take necessary measures, resulting in the vehicle driving on a road that had not been officially opened for use. this also seemed to create dangers prohibited by law, and there was a causal relationship between the death and the result.

the second position is the outcome avoidance possibility theory, if the duty of care is fulfilled, it is still impossible to prevent the occurrence of the result, then there is no causal relationship. the court finally took this position. if the driver kept a reasonable distance, the accident might not have been avoided, so there is no causal relationship. however, causation itself has a certain degree of probability, not inevitability. it is difficult for us to go back to the past and draw a definite conclusion. if the driver kept a reasonable distance, there would be 100% no accident, but it is not necessarily.

the danger-elevation theory emphasizes that the behavior itself is wrong, while the outcome-avoidance possibility theory emphasizes that the outcome is wrong.

the third position is a compromise theory, also known as the outcome avoidance high probability theory.it is to judge according to the law of probability. if the obligation is fulfilled, for example, in the speeding case of zhang san, if he did not exceed the speed limit, there is a high probability that death will not occur. this is actually a reference to the causal relationship theory of british philosopher david hume. according to hume's position, any known thing cannot infer the unknown. because causality is only descriptive, it is a summary and induction of known experience, or in other words, any causal relationship is only a probabilistic speculation. many times, rationality is limited to causality, and it can only be accepted by faith.

the jury system as a breakthrough

it is precisely because of the complexity of the theory that there is confusion in determining negligent crimes. this is why professional knowledge cannot be separated from universal knowledge. the common law system has a jury system. for complex cases tried by a jury, only when the jury unanimously decides that a crime has been committed can a person be found guilty.

my country also has a jury system. article 16 of the people's jury law stipulates that for other cases with major social impact, a seven-member panel of people's jurors and judges can be formed to hear the case. if a seven-member panel is adopted, it will consist of three judges and four people's jurors.

when a collegial panel in my country deliberates on a case, the principle of minority obeying the majority is followed. people's jurors participate in the trial of a case by a three-member collegial panel, independently express their opinions on the determination of facts and the application of law, and exercise their voting rights. people's jurors participate in the trial of a case by a seven-member collegial panel, independently express their opinions on the determination of facts, and vote together with the judge; they can express their opinions on the application of law, but do not participate in the vote.

so, regarding the identification of the road and causal relationship, is this a factual issue or a legal issue? this may not be easy to distinguish. if the causal relationship adopts the result-avoiding high probability theory, then does the probability issue still belong to the issue of fact identification? if it belongs to fact identification, then if the trial is conducted by a seven-member collegial panel, the people's jurors can still exercise their voting rights. for complex issues, the judgments of the people's jurors selected through due process may be more worthy of listening.