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A Breach of the Norms of Cautiousness as Fundament for Criminal Responsibility

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A Comparative Analysis

image of European Journal of Comparative Law and Governance

This paper attempts to investigate the question of the norms of cautiousness in criminal law. It appears that while in civil law countries the breach of those norms, manifested in external conduct, is a necessary premise for stating that an agent has committed an unintentional crime, common law countries tend to perceive carelessness or incautiousness merely as a state of mind. Consequently, exemption from responsibility in the event of a cautious behaviour is problematic and is resolved by a means of a host of different institutions, like the reasonable man figure. Such an approach does not appear to be fully convincing. Instead, the importance of the norms of cautiousness in criminal law should be more explicit, as it is in Scots law or in the legal systems of a number of civil law countries, which would eliminate the risk of serious injustice while still punishing individuals for unintentional crimes.

Affiliations: 1: Research Associate, Faculty of Law, University of Passau,


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