摘要
假定因果关系与结果避免可能性是客观归责领域里两个不同性质的问题,前者不影响归责;后者是否影响归责,要根据"合义务替代行为"的思考方法来确定。只有在遵守义务能避免结果时,才能归责给违反义务的行为人;当遵守义务也不能避免结果时,义务违反与结果之间欠缺内在关联,应排除归责;当结果避免的可能性不确定时,应根据罪疑唯轻原则对行为人做有利认定,视为义务违反关联性欠缺,从而排除归责。客观归责理论的方法论意义,不是条件说或相当因果关系说能够代替的。
Hypothetical causation and possibility of avoiding result are two issues in the field of objective attribution theory. There exist certain similarities between them in appearance, but the two concepts are not only distinct in the basic nature but have different thinking methods and conclusions as to whether the result can be attributed to the perpetrator.Hypothetical causation means that even without the act conducted by the perpetrator, the re sult would still be triggered by other people or events. Hypothetical causation will not affect the attribution. Firstly, what criminal law need to and also has capability to handle, are only legal or illegal cases, rather than lucky or unlucky ones. Protection on some legal interest can not be given up solely because they would be ultimately damaged or difficult to be saved. Secondly, target of attribution is the relationship between the perpetrators＇ act and the result as a specific constitutive requirement rather than an abstract one. Possibility of avoiding result can be divided into two kinds of situations, that is, inevitable result and possible result. The former refers to the result which will still occur even if fully complying with the prudent duties. The latter refers to the situation whether the result will finally appear or not is uncertain. The former rejects the attribution, and whether the latter affects the attribution depends on the thinking method of ＂an alternative behavior of performing duties＂. There exist following differences between hypothetical causation and possibility of avoiding result. Firstly, hypothetical causation makes reference to ＂abstract results＂ while the inevitable result makes reference to ＂concrete particular result＂. Secondly, hypothetical causation normally assumes ＂an alternative perpetrator （or event）＂, while the inevitable result is ＂an alternative behavior of performing duties＂. Thirdly, hypothetical causation involves two causes, while there is actually only one cause for inevitable result. Fourthly, the cause for hypothetical causation is real in fact, while the ＂alternative behavior of performing duties＂ is a thorough assumption. Fifthly, in the case of hypothetical causation, the previous causation is undoubted, while in the case of possibility of avoiding result, the correlation between the result and the violation of duties is always unclear. Sixthly, hypothetical causation does not affect attribution and can be applied both in intentional and negligent offences, while inevitable result will reject attribution and is mainly applied in negligent offences.
出处
《法学研究》
CSSCI
北大核心
2009年第5期145-163,共19页
Chinese Journal of Law
关键词
假定因果关系
结果避免可能性
合义务替代行为
罪疑唯轻
客观归责
hypothetical causation, possibility of avoiding result, alternative behavior of performing duties, risk--increasing theory, objective attribution theory
