摘要
在过失犯中采纳结果避免可能性理论,既有实定法依据,也能够解决实务中践行传统过失审查模式所导致的问题,保证归责范围的妥当性。要使结果避免可能性理论研究的教义学成果在实务中落地生根,必须结合实务案例确定结果避免可能性理论适用的具体操作指南。首先,合义务替代行为是最低限度的符合全部注意义务的行为。其次,应当区分风险,在假定因果流程中需要考虑的是与行为人所创设风险之实现有关的"关联风险",而要避免的"结果"必须结合具体的时空关系进行判断。最后,应当判断是否确定能够避免结果发生,在不能确定能否避免结果发生时,应采取风险升高理论;但在避免结果发生的可能性较小时,可对行为人酌情从轻处罚。
This research reviews a large number of judgments and finds that courts in general rely primarily on empirical judgments and adopt the traditional negligence review model when handling negligence offences: where material consequences are induced, the equivalent causality theory is applied to examine objective causality relations and whether there is possibility for the actor to foresee the result. This model results in repeated reviews and absence of normative judgement. The theory of possibility of avoiding the result must be adopted to address this practical problem. The theory of possibility of avoiding the result is derived from the theory of objective imputation. It determines the scope of the constitutive behavior from the purpose of legal order. It not only has the basis of substantive law, but also ensures the appropriateness of the scope of imputation, thus can prevent the arbitrariness of imputation, which is conducive to solving practical problems.In judicial practice, the application of the theory of possibility of avoiding the result should be guided with a set of typical and representative cases. First, in the judgment of assumed causal process,the substitution behavior must be the behavior that meets all duties of care in a specific situation, and it should also be considered as the minimum compliance behavior. Second, risks should be categorized into "relevant risks" and "irrelevant risks". In determining the assumed causal process, we should examine only "relevant risks" while excluding "irrelevant risks" created by the actor that have no influence on the realization of the risk created by the actor. In this way, it is possible to reasonably attribute criminal liabilities when multiple actors violate the duty of care, and to give proper explanation of the "results" to be avoided in the assumed causal process and within a specific temporal and spatial context. Finally, the certainty of avoiding the result should be examined. When it is not certain whether the result can be avoided, increased risk
作者
刘俊杰
Liu Junjie(School of Marxism Studies,Renmin University of China,Beijing 100872,China)
出处
《浙江大学学报（人文社会科学版）》
CSSCI
北大核心
2021年第4期110-125,共16页
Journal of Zhejiang University:Humanities and Social Sciences
关键词
过失犯
结果避免可能性理论
风险升高理论
规范判断
客观归责
negligence offences
theory of the possibility of avoiding the result
increased risk theory
normative judgment
objective imputation
