A new perspective to deny indirect intent
Abstract
The common logical misunderstandings in the determination of indirect intent mainly lie in emphasizing cognitive elements while underestimating volitional elements, wrongly replacing volitional element determination with cognitive element determination, and wrongly equating the violation of the duty of care with indirect intent liability. It is necessary to carefully distinguish the differences between indirect intent and overconfidence under the disguise of similarity in cognitive elements, and to pay attention to the similarities between indirect intent and negligence under the disguise of distinct cognitive elements. The element of will should be judged separately from the element of cognition. When the criminal purpose is lacking or a specific criminal motive is absent, the establishment of indirect intent is excluded.
Key words
Indirect intent should be aware of the purpose and motive of negligent crime
The concept of indirect intent is relatively abstract and there are many controversial viewpoints in theory, which directly leads to many ambiguous aspects in individual case judgments, such as the recognition and judgment of the possibility of indirect intent, how to determine the laissez-faire attitude, and how to distinguish it from negligence, etc. Without a systematic logical thinking model, merely focusing on the numerous details of evidence in individual cases and getting entangled in them not only fails to help in the determination of the case but also easily leads to the logical misunderstanding of empiricism.
01 Common logical Misunderstandings in the determination of indirect intent
The common logical misunderstandings in the determination of indirect intent mainly lie in the handling of the relationship between cognitive elements and volitional elements, as well as the misalignment of the basis for subjective attribution.
1. Emphasize the element of cognition while underestimate the element of will. Under normal circumstances, the logical sequence of cognitive element judgment usually takes precedence over that of volitional element judgment. This in itself conforms to the rules of judgment and logical habits. It is precisely because the judgment of the cognitive element is placed at the forefront that it often leads to the cognitive element becoming the focus of the subjective element judgment of the case, and thus becoming the focus of fact-finding and evidence collection. This can easily lead to the formation of basic evidence and facts of cases with varying degrees of emphasis. When too much evidence and facts accumulate on this element of cognition, it seems to provide a relatively rich argument for the existence of the element of cognition, but at the same time, it is also easy to cause the neglect of the element of will. In other words, it is not that the content of this will has not been paid attention to, but rather that there has been no detailed verification, let alone the necessary cautious logical deductive reasoning. Because the elements of will themselves are difficult to prove and it is also hard to find direct corresponding objective facts and evidence materials, in practice, the presentation and judgment of cognitive elements are generally overly emphasized, while the proof and argumentation of the elements of will are intentionally or unintentionally ignored.
2. The determination of cognitive elements cannot replace the determination of volitional elements. The cognitive element of indirect intent is a kind of possibility cognition, while the element of will is a kind of indulgence. Generally, the subjective understanding content of the actor is identified through verbal evidence and abnormal details of facts, and then relatively simple reasoning is made based on empiricism's possible understanding of the actor. With what is called the understanding of possibility, one usually does not overly consider the judgment of laissez-faire, but is more likely to think without thinking that the understanding of possibility can basically directly deduce the content of the will of laissez-faire. Logically, although the element of will requires independent judgment, in the habit of logical judgment, there is a problem of being replaced, covered, or even integrated in judgment by the element of cognition. Generally speaking, when a person has a possible understanding of the harmful outcome and then continues to carry out the act, it is usually misunderstood as holding a laissez-faire attitude towards the harmful outcome. The root of this kind of thinking inertia lies in the negation of the judgment of the independence of the element of will, and it is a wrong substitution of the judgment of the element of cognition for that of the element of will.
3. Violation of the duty of care does not entirely equal indirect liability for intent. The duty of care refers to the responsibility that an individual or organization bears in a specific situation based on certain rules or customs, including the duty of anticipation and the duty of avoidance. The so-called violation of the duty of care refers to the failure to properly fulfill the duty of anticipation and the duty of avoidance. In practical operation, there exists a erroneous logical phenomenon of determination, that is, the violation of the duty of care is equivalent to indirect intentional fault liability.
Indirect intent, as one of the forms of subjective liability, in many cases relies on legal presumption in the judgment of cognitive elements, that is, the so-called "should have known". The prerequisite for knowing is that the actor has the obligation to know, which is tentatively equivalent to the so-called duty of care. If we reverse the logic, the violation of the duty of care is usually interpreted as the failure to fulfill the due duty of care. This leads to the conclusion that it constitutes the knowledge that should be known, and then determines that the cognitive element of indirect intent is present. Further, through the judgment of the independence of ignoring the element of will, it is concluded that indirect intent is established.
This kind of logical reasoning seems to be more in line with the judgment rules of empiricism and is also very useful emotionally. In fact, it is a subconscious presumption of guilt. Among them, the most crucial point is that the violation of the duty of care does not entirely equate to having known; it is also entirely possible for the violation of the duty of care to lead to "failure to foresee when it should have been foreseen". That is to say, at the factual level, the violation of the duty of care may either give rise to possible awareness or lead to unforeseen circumstances. The recognition of possibility is a factual basis, and it should be known that it is a normative evaluation based on this factual basis. Then, from the perspective of the corresponding normative evaluation, it can be either "should have known but not known" in intentional acts or "should have foreseen but failed to foresee" in negligent acts. The violation of the duty of care can only be deduced from the fact that the actor should have known about the harmful result when there is a possibility that the actor could have known about it. It is incomplete to directly infer another normative evaluation (which should be known) from the normative evaluation of the violation of the duty of care without considering the factual basis of possibility cognition. This is essentially a kind of "vague" logical deduction, not completely wrong, but it will occasionally lead to "distorted" logical omissions.
02 Difficulties in the Practical Determination of Indirect Intent
Direct intent and indirect intent are relatively easy to distinguish due to the significant differences in the elements of cognition and will. The difficulty lies in the distinction between indirect intent and negligence. Although it seems easy to distinguish between intentional and negligent liability types, it is difficult to make an accurate distinction either in theory or in practice.
1. It is necessary to carefully distinguish the differences between indirect intent and overconfidence under the guise of similarity in cognitive elements. Indirect intent requires the actor to have the possibility of recognizing the outcome and the recognition of the possibility, while overconfidence is also manifested in the cognitive elements as the actor having the possibility of foreseeing the outcome and having already foreseen the possibility of the outcome occurring. Literally speaking, the content of their understanding seems to have little difference. However, if we further deconstruct its cognitive model, it will be found that the cognitive content of indirect intent includes the cognitive possibility [1] and the cognitive possibility [2], while the cognitive content of overconfident negligence is the recognition of the foreseeable possibility and the recognition of the less likely possibility.
From the perspective of the scope of cognition, indirect intent is the individual's own cognition, which includes but is not limited to the recognition of the possibility of harmful consequences occurring, as well as the recognition of other aspects of the behavioral facts. However, overly confident understanding is actually only about the possibility of harmful consequences occurring.
From the perspective of cognitive standards, the recognition of indirect intent focuses on the individual cognitive ability and level of the actor, while the determination standard of overconfident foreseeability does not solely rely on the individual's cognitive ability but is more inclined towards the cognitive ability and level of the average person.
From the perspective of the degree of understanding, indirect intent refers to the possibility of the actor's recognition of the harmful act and its consequences. As for the magnitude of the possibility of recognition, it is all included in the scope of the actor's understanding of indirect intent. The permissive attitude of the actor determines various degrees of tolerance for the occurrence or non-occurrence of harmful behaviors and consequences. However, the overly confident possibility of anticipation differs in degree from the indirect and intentional possibility of cognition. Anticipation can be loosely simplified to the initial stage or form of cognition, that is, the possibility of anticipation is the primary form of the possibility of cognition and has not developed into a more mature probability cognition. Otherwise, the degree of recognition of probability will lead to a direct conflict with the negative element of will, which does not conform to the logical structure of overconfidence. Therefore, an overly confident level of cognition can only be a cognitive state with a relatively low possibility of the initial outcome occurring.
At the above three levels, indirect intent and overconfidence have some overlapping elements. Although the problem of distinguishing between indirect intent and overconfidence can be partially solved, it is difficult to always be effective.
2. It is necessary to pay attention to the similarities between indirect intent and negligence under the disguise of the differences in cognitive elements. Generally speaking, there is no dispute over the distinction between indirect intent and negligence. Cognitive elements have significant differences in whether they foresee (recognize). However, in practice, it is precisely because the differences are too obvious that their similarities are overlooked. Because of an excessive emphasis on distinction, it is easy to cause the category that should belong to carelessness to be unknowingly shifted to the realm of indirect intent. The problem here lies in the relationship between the determination of what should be foreseen and the recognition of the existing possibility.
The logical reasoning in practical operation is generally like this. The violation of the duty of care directly leads to the knowledge that should be known, and then quickly enters the category of indirect intent for judgment. In other words, as long as the duty of care is violated, one takes it for granted to draw the conclusion that "should have known". The sources of the duty of care include legal provisions, industry regulations, professional customs and many other aspects, which leads to the responsibility of the actor to fulfill the duty of care in accordance with these rules. If the actor fails to fulfill the duty of care well, it is easy to be determined that they should have known about the possible harmful behavior and consequences, and to draw the conclusion that they should have known.
In fact, a violation of the duty of care may also constitute "failure to foresee when it should have been foreseen". It is natural that there exists a situation where a person fails to properly fulfill his duty of foreseeability, resulting in a failure to foresee what should have been foreseen. Equating the violation of the duty of care with the requirement to know undoubtedly directly denies the possibility of having foreseen but not having foreseen. If the violation of the duty of care is taken as the logical starting point, it is obviously impossible to completely ignore the possibility of negligence and directly draw the conclusion of indirect intent.
03 A New Perspective on the Practical Determination of Indirect Intent
The ambiguity in the determination of indirect intent and the unclear boundary between it and negligence mainly lie in the confusion of the evaluation system and mechanism of the elements of cognition and will. The key to accurately identifying indirect intent lies in rationalizing the evaluation relationship and logic between cognitive elements and volitional elements.
In addition to the cognitive element, the element of will needs to be judged separately. At the level of what should be, from the perspective of the basic structure of the sin of intent, the element of cognition and the element of will are two distinct elements that exist in parallel and independently. The content of the subjective aspect of the actor reflected by the element of will is completely different from that of the element of cognition. This means that the element of will and the element of cognition are different criteria and bases for judgment and require relatively independent judgment. The judgment of the element of will cannot be replaced by the judgment of the element of cognition. In terms of specific evidence and facts, the facts and evidence corresponding to the cognitive elements and the volitional elements partially overlap, but there will also be corresponding ementations. Evidence and facts that can judge the elements of cognition sometimes serve as the fundamental facts for judging the elements of will, but they cannot completely replace them.
At the actual level, the most direct way to avoid the substitution of the judgment of the element of cognition for that of the element of will is to make a separate judgment of the element of will. The judgment of the element of will after the element of cognition is irreplaceable and cannot be mixed into an integrated evaluation. After the evaluation of the cognitive elements, there must be a separate re-evaluation process for the element of will. After the actor has completed the judgment that there is a possibility of recognizing the harmful act and its consequences, at this point, a new evaluation of the actor's attitude towards the harmful outcome or danger of the act should be strengthened and initiated. Having the recognition of possibility does not necessarily mean holding a laissez-faire attitude towards danger or harmful consequences; it could also be a negative or affirmative attitude. Of course, the key point to be examined here is the negative attitude to distinguish between intent and negligence.
2. The lack of a criminal purpose can deny the establishment of indirect intent. The purpose of a crime is the ultimate pursuit of the perpetrator and the embodiment of the element of will in the subjective aspect. The criminal purpose should have played a significant role in the determination of the volitional elements of indirect intent. One important reason why it has not received sufficient attention is that the traditional criminal law perspective holds that the criminal purpose only exists in direct intent and not in indirect intent. In fact, whether from the perspective of the basic norms of criminal law or from the perspective of the facts constituting a crime, indirect intent also has a criminal purpose. Criminal law norms do not deny the existence of a criminal purpose through indirect intent. However, the psychological phenomenon where a laissez-faire attitude towards the outcome can coexist with the criminal purpose is completely possible, and there is also a subjective psychological relationship between laissez-faire and the criminal purpose.
Generally speaking, when there is insufficient evidence to prove the existence of a criminal purpose, direct intent can be ruled out. As for whether indirect intent can be ruled out, there may be controversy. Upon careful examination, the logical premise of holding a negative view might still be due to the subconscious belief that indirect intent does not have a criminal purpose. The affirmative view firmly holds that the content of the element of will is another aspect of the criminal purpose. That is to say, whether it is hope or indulgence, it is actually a psychological attitude based on the objectification (harm) of the criminal purpose. Therefore, if there is no criminal purpose, of course, there is no objectification of the criminal purpose, and thus there is naturally no corresponding psychological attitude (hope or indulgence). The conclusion drawn from this logic is that there is no criminal purpose, that is, no hope and no indulgence, at most a negative attitude, or even a state of inwill. From this perspective, the criminal purpose serves as the psychological support for intentional crimes. Without a criminal purpose, there is no criminal intent, and it is natural to deny indirect intent, thereby distinguishing indirect intent from negligence.
3. A specific criminal motive can deny the establishment of indirect intent. The reason why the determination and role of criminal motives are not given due attention is that the occurrence of a crime itself has complex internal and external causes, which are difficult to examine and ponder. This is an understanding from the perspective of the occurrence of criminal phenomena. From another perspective, from the Angle of crime determination, the criminal motive is the definition of the cause of the criminal act after the fact. Based on empirical rules and logical norms, the criminal motive can also be relatively accurately defined. For instance, the motive for property crimes is generally to make profits. Then, for specific criminal motives, the determination of the form of guilt has certain exclusion value. If there is no motive for profit, property crimes are generally difficult to establish. In some economic crimes, making profits is also a necessary and specific criminal motive, and it is naturally relatively easy to examine and determine. If there is no specific economic interest claim, direct intent and indirect intent can also be ruled out.
Footnote
[1]. Cognitive possibility refers to the objective conditions that the actor possesses to recognize the occurrence of harmful consequences (such as cognitive ability and information acquisition channels).
[2]. The awareness of possibility is in contrast to the awareness of necessity, recognizing that harmful behaviors and their consequences may occur.
