{"title":"回收的恶意","authors":"Findlay Stark","doi":"10.1017/s0008197323000442","DOIUrl":null,"url":null,"abstract":"Abstract The criminal law doctrine of “transferred malice” has been much discussed. What has gone comparatively unnoticed is the phenomenon of “recycled malice”. For example, those who endorse transferred malice would hold that, if D tries to shoot V, and the shot misses and hits T, D’s intention to hit V is “transferred” to T, and a completed offence against T is constructed. But many legal systems that endorse transferred malice also allow D to be convicted of an attempted offence against V. In other words, D’s intention to hit V can apparently be used multiple times. Once this phenomenon is noticed, a question arises over its justification and limits. This article argues that no convincing justification for recycling mens rea exists.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":"27 1","pages":"0"},"PeriodicalIF":1.5000,"publicationDate":"2023-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":"{\"title\":\"RECYCLED MALICE\",\"authors\":\"Findlay Stark\",\"doi\":\"10.1017/s0008197323000442\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"Abstract The criminal law doctrine of “transferred malice” has been much discussed. What has gone comparatively unnoticed is the phenomenon of “recycled malice”. For example, those who endorse transferred malice would hold that, if D tries to shoot V, and the shot misses and hits T, D’s intention to hit V is “transferred” to T, and a completed offence against T is constructed. But many legal systems that endorse transferred malice also allow D to be convicted of an attempted offence against V. In other words, D’s intention to hit V can apparently be used multiple times. Once this phenomenon is noticed, a question arises over its justification and limits. This article argues that no convincing justification for recycling mens rea exists.\",\"PeriodicalId\":46389,\"journal\":{\"name\":\"Cambridge Law Journal\",\"volume\":\"27 1\",\"pages\":\"0\"},\"PeriodicalIF\":1.5000,\"publicationDate\":\"2023-11-06\",\"publicationTypes\":\"Journal Article\",\"fieldsOfStudy\":null,\"isOpenAccess\":false,\"openAccessPdf\":\"\",\"citationCount\":\"0\",\"resultStr\":null,\"platform\":\"Semanticscholar\",\"paperid\":null,\"PeriodicalName\":\"Cambridge Law Journal\",\"FirstCategoryId\":\"1085\",\"ListUrlMain\":\"https://doi.org/10.1017/s0008197323000442\",\"RegionNum\":2,\"RegionCategory\":\"社会学\",\"ArticlePicture\":[],\"TitleCN\":null,\"AbstractTextCN\":null,\"PMCID\":null,\"EPubDate\":\"\",\"PubModel\":\"\",\"JCR\":\"Q1\",\"JCRName\":\"LAW\",\"Score\":null,\"Total\":0}","platform":"Semanticscholar","paperid":null,"PeriodicalName":"Cambridge Law Journal","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.1017/s0008197323000442","RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q1","JCRName":"LAW","Score":null,"Total":0}
Abstract The criminal law doctrine of “transferred malice” has been much discussed. What has gone comparatively unnoticed is the phenomenon of “recycled malice”. For example, those who endorse transferred malice would hold that, if D tries to shoot V, and the shot misses and hits T, D’s intention to hit V is “transferred” to T, and a completed offence against T is constructed. But many legal systems that endorse transferred malice also allow D to be convicted of an attempted offence against V. In other words, D’s intention to hit V can apparently be used multiple times. Once this phenomenon is noticed, a question arises over its justification and limits. This article argues that no convincing justification for recycling mens rea exists.
期刊介绍：
The Cambridge Law Journal publishes articles on all aspects of law. Special emphasis is placed on contemporary developments, but the journal''s range includes jurisprudence and legal history. An important feature of the journal is the Case and Comment section, in which members of the Cambridge Law Faculty and other distinguished contributors analyse recent judicial decisions, new legislation and current law reform proposals. The articles and case notes are designed to have the widest appeal to those interested in the law - whether as practitioners, students, teachers, judges or administrators - and to provide an opportunity for them to keep abreast of new ideas and the progress of legal reform. Each issue also contains an extensive section of book reviews.
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