| Negligent traffic crime refers to the crime conducted by persons with foreseeing capacity who breach the duty of care and infringe the legal interest during transportation. According to the new theory of negligence, the essence of negligent traffic crime is the duty of result avoidance. Whether the duty of result avoidance is violated or not relies on whether there is causation between the conduct and result of the traffic accident. That is how the concept of the protective scope of rule gets into our view. According to the old theory of negligence, whether causal process complies with the protective scope or not is a problem related to the possibility of factual result avoidance. While pursuant to the new theory however, it should be considered as an issue with regard to whether there is a duty of result avoidance or an increasing danger, which are determined by the possibility of normative result avoidance. By analyzing the mechanism of result foreseeing possibility, the principle of criminal responsibility, and burden of proof in negligent traffic crime cases, it can be concluded that the new theory should be adopted.The protective scope of rule as we discuss here includes not only criminal law and its duty of care but also traffic regulations and their duty of care. Traffic regulations are the sub-laws and the basis of duty of care in criminal law. The theory of the protective scope of rule does not need to be used under the objective imputation theory, because it relates to the problem of whether the development of causal process in negligent traffic crime complies with legal order. It is not an element of liability, but an element of illegality. For its judiciary application, the theory of the protective scope of rule must be applied case by case and the protective purpose of both criminal law and traffic regulations should be taken into account. In Chinese criminal theory, it is unclear whether the essence of negligent traffic crime is the duty of result foreseeing or the duty of result avoidance, which has resulted in expanded conviction of negligent traffic crime in practice by directly relying on the administrative decisions about responsibilities for traffic accidents without considering the criminal essence from legal perspectives. This negative reality can be changed with the theory of the protective scope of rule in which the conviction of negligent traffic crime relies on the analysis of causal relation. |
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