The newspapers report daily news of crimes of all kinds; robberies, violence, murders. When it comes to the latter, the reaction of the public often does not distinguish between a dreadful road incident and a coldblooded murder. As there is the event of death in both cases, it is always murder and must be punished with the same penalty. But it is not the same case.
A crime, simplifying as much as possible, is any human action or omission, prohibited by criminal law, sanctioned with a penalty. The crime consists of two elements; one objective, the behaviour; and the second, psychological. Regarding the psychological element in law, a distinction is made between the different forms of misconduct; intention and carelessness. Depending on the psychological element identified, the judge applies a different sanction.
The judge’s task in tracing the intentions of the agent is truly complex. The defendant’s statements are rarely reliable. It almost seems that the judge is required to read the mind and speculate. Misperception can bring to awful outcomes and result in the difference between a monetary fine and a few months in jail. The judge is required to identify themself with the accused in order to perceive their point of view. Precisely for this reason, the law provides some very useful guidelines.
In some cases, the distinction is very particular, such as that between possible and conscious intention.
One occurs when the agent is not aiming to cause the criminal event, but believes it is seriously probable. The agent accepts that the harmful event may occur in order not to protect their own interest and any advantages. For example, a fugitive who, fleeing by car from the police, collides with a vehicle coming from the opposite direction. In this case, their intent was not to cause the death of the subject in the vehicle, but in order to get rid of the police, they accepted the possibility of killing the subject in the car coming from the opposite direction.
While, in the circumstances of conscious intention, the agent envisions the occurrence of the event but believes that it will not occur, and this because, for carelessness, they underestimate the probability that it will occur or, for shallowness, overestimate their ability to avoid it. For example, the knife thrower in a circus knows that they could injure or kill the nice lady hung at the rotating target. Trusting in their skill and experience, they are sure they will do her no harm.
But there’s more. It might be easier for us mere mortals to picture ourselves in less compelling behaviours. Theft of a worthless asset does not constitute a crime. The intention must be to profit from the deed. Therefore, there must be an appreciable, albeit negligible, offense to property, which excludes the punishment of the so-called impossible crime. Such is the case of the theft of an object with a purely playful intent. Emblematic is also the case of Ikea pencils. None of us ever pay for those pretty sharpened pencils. The crime of theft is excluded due to their symbolic value.
This bears questions. How much is enough? Who sets the minimum value? On which criteria? The value must be determined not by the perception of the holder of the right. Then who can decide the value of Ikea pencils? Or my stuffed bear protecting me from nightmares? Or my first BMX bicycle? Or the pendant my grandfather passed on me? These have immeasurable value to me, while nothing more than a few renminbi for anyone else.
The law uses as objective a criterion as possible, in order to avoid clashes of subjective opinions and personal points of view. The economic evaluation of the property is determined by a third observer falling within the socio-professional categories within which the victim, in turn, comes to be a part of. Therefore, goods that do not have this peculiarity, such as a rusty pin, cannot fall within the scope of application.
It would not be adequate for the legal system to bend to our instincts or to our personal perceptions. The problem dates back to the dawn of time. These rules of law find their basis in the first civil societies. Fortunately, the wise legislator and the jurisprudential evolution over the centuries, have been able to produce resolutive rules, which we still face in our everyday lives.
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This article is intended solely for informational purposes and does not constitute legal advice. Although the information in this article was obtained from reliable, official sources, no guarantee is made with regard to its accuracy and completeness. For more information please visit dandreapartners.com or WeChat: dandreapartners
