Research On The Theory Of Objective Imputation

Imputation theory began in earnest in Hegel’s philosophy of law belong to the idea of responsibility, Karl Larenz first proposed imputation concept, Horney lattice most early proposed the objective imputation concept and the headstream of modern theory of objective imputation in the 70 s of the 20 th century in the German criminal law and criminal jurist LK Roxin since the 90 s of the last century, the first edition of general provisions of criminal law textbook on the theory of objective imputation were carefully organized and then with his academic activities continue to further the theory supplement and revision, today can become the master of the objective imputation theory. In Taiwan, China, Chinese scholar who had studied in Germany Xu Yuxiu is objective attribution of responsibility theory propagation. In Japan Yamanaka Keiichi professor is objective attribution of responsibility theory advocates, in mainland China, the mainstream scholars mostly on the theory of objective imputation to positive attitude.Creative responsibility theory of the objective imputation is proposed constitutive elements of illegality is the objectification of subjective illegality, criminal law norms forbidden substantive obligations is originated from the protection of legal interests and its regulating purpose is the protection of legal interests, therefore, should constitute elements is of legal interest infringement. This is the meaning of objective concept. Objective the concept of risk responsibility theory proposed, under the objective of the requisites to constitute the only factor, disaggregation not made law prohibits the risk, unrealized law prohibits the risk and not in the constituent elements of the scope of protection of the three criteria. Under the three judge rules, the breakdown of some specific judgment imputation, in Germany to Jacobs and LK Roxin represented constructed system is different, and there is no consensus of opinion, generally contains the behavior whether to produce and implement the risk, or increased risk to the law does not allow the degree, or manufacturing, the realization is prohibited by the judgment of danger. Luo Kexin put forward the theory of alternative behavior is to judge whether the manufacturing or realization of the law is not allowed to benefit the risk.Objective attribution of responsibility theory was founded at the beginning of the ambitious, is intended to replace constitute elements of class and governs illegal, today this attempt has been scholars to give up, the system status, retreat to the objective rational crime on five class, the second class constitutes the second level of the elements of the class, excluding constitutive, actually become negates the constituent elements of the judgment rule. Objective attribution of responsibility theory itself, three judge rules are not the same class of, in the elements of the scope of protection is actually not to create risk and the risk of the upper rules, and its lower imputation, such as participation in others deliberate self harm shall can be decomposed in two different rules. In addition, in the three judgment rules of the intricacies of the subordinate rules, the principles of trust, a special cognitive theory and no backtracking rules such as understanding is particularly necessary in the interpretation, the principle of trust situation, is actually because they do not have the duty of care, rather than the opposite because of Lord Zhang Xinlai’s doctrine and principle excluded because of duty so in fact, the principle of trust just illustrates a judgment result of the judgment itself is not big, maybe this is the reason of trust principle is not determined in the systematic position of the objective imputation theory and symplectic Roque Jacobs. It can be anti constitution, impediment of responsibility or liability obstructed the result of judgment, as long as the general judgment whether the actor has to guard against the risk of the duty of care, you can determine whether the behavior of manufacturing risk. Backtracking prohibition is the result of a judgment, not the standard or cause of judgment. When the perpetrator of the dangerous source no duty to control, that does not have the status of the guarantor and the behavior of natural don’t think is a risk to the interests of law behavior, usually the situation really needs is the criterion to judge to ensure how to determine the scope of people, or how to determine the risk of legal interests safeguard obligation, that is, as an obligation. A theoretical contribution is to expose the truth of the causal relationship, is a physical real relationship, what conditions will be what the outcome, which is the physical phenomena and physical sense, however, on the one hand, for what conditions produced what results, determined to determine the information of the specific material complete, which in practice is often difficult to obtain; on the other hand, even in Japan, as represent the classic with a case are the classic example of the form is the theory itself is empty. Cognition special occasions, Jacobs’ s point of view is in no special law protection of rights and obligations between, not because of has the special cognitive and the harsh obligations to act, can not think of the creation of a risk is not allowed.In our country, the objective responsibility theory terminology from judicial practice has a certain distance, but the objective imputation methodology and of the constituent elements of specification of the judgment standard, reference to the judicial practice of our country. In the judicial practice of our country, some cases originally is the objective imputation judgment, of the constituent elements have no set judgment aside, the subjective responsibility judgment, into crime or a crime, for example Tian Yufu wrongful death case, Wang negligence causing serious injury case; in some cases, to the conditions that the alternative theory of objective imputation, such as Hu Guangwen traffic accident case, Dinglin intentional homicide case, Huang traffic accident case. In some cases actually use the objective imputation theory, or should use the objective imputation theory can be the appropriate, which involves manufacturing risk case, such as song of a traffic accident case, Wang Anxin intentional injury case; cases involving the risk, such as Liu Zhiyong of illegal medical practice, Zhang Xing kidnapping, Wang Yanming traffic accident case, Mu Zhixiang negligent causing of death case; cases involving victims with special constitution and Realization of the risk, such as case of intentional injury of Liu Xu, Jian Qing Gong negligence causing death case; relates to increased risk and alternative acts on the case, such as the case of traffic accident Da Wen Zhao, et al Wu Zheng responsibility accident case. In conclusion, objective responsibility theory and the theory have a lot in common and in some cases results, in responsibility class of analysis is sufficient to exclude criminal, however, in methodology, objective theory of liability fixation beyond, or causal relationship theory. In addition to the objective concept of creative, creative concept of risk, according to the structure constitute elements of criminal judgment rule is more purely normative judgment, according to the theory of objective imputation of specific criteria and treatment of some difficult cases are more accurate. In a judgment, mainly based on experience, lack of rules that are determined by the test, on the one hand, some certainly acknowledged the considerable judgment is by presented to the cases in judicial practice, on the other hand, quite to determine actual ultimately depends on the personal feelings. In fact, it is more reasonable to judge the nature of the crime, and to determine the types of the theory of the objective imputation theory. In some specific cases, can also reflect a judgment or reasoning judgment is repetitious. For the theory of objective imputation is implement behavior theory and the equivalent combined and the behavior of the substance on what is said, we did not use the responsibility theory views the necessary objective imputation is debatable, objective attribution of responsibility theory essence of normative judgment, of the act itself is to implement behavioral judgment practice is the objective responsibility theory methodology. According to the theory can solve the problem so negate the objective imputation theory point of view to discussion, because the objective imputation theory of creative concept of the objective purpose of the subjective and objective illegal illegal connection, the three rules of multiple evaluation of the elements of the theory are harmonious, objective imputation theory is certainly not causation theory and Practice on the combination of contents, but the complete elements of exclusion theory, model theory is one of the substantive criminal law and criminal law norms, itself has great theoretical value; according to the theory of objective imputation can be said there is no problem in judging the level of liability or guilt, the right to have the homing elements of judgment in general, can be solved is seen from the results, and that in the judicial practice there have been some questionable judgment, objective imputation theory is from The method to solve the problem and determine correct correctly implement the separation of fact judgment and normative judgment method theory, stresses standard judgment and value judgment the importance of independence, is of great practical significance for the judicial practice of our country. In our country’s current levels of crime theory and objective attribution of responsibility theory is no space, however, on the one hand. This is not to deny objective attribution theory’s reason, in a certain extent that just criminal theory system of different; on the other hand, does not affect the objective imputation theory on the existence of space. Established in the judicial practice of our country in the future more specific normative judgment standard is necessary, it should be in the form of elements in judging, from experience to judge need to attach great importance to the standardization of judgment and the value judgment, even without the use of rules and terminology of the responsibility theory of objective imputation, but in logic to pay attention to the fact judgment and normative judgment to distinguish.In this paper, the first chapter briefly introduces the academic history of the responsibility theory of objective imputation, and causal relation theory and behavior theory have a delicate relationship, objective theory of liability fixation started as conditions of the theory of limit theory and behavior theory is from the objective imputation theory development out. In the second chapter, the basic content of the theory of objective imputation were reviewed, of the three judge rules under the objective of the regulations of lower are reviewed. In all of the cases in the traditional theory can be solved, but apparently this is not to deny the objective attribution of responsibility theory reason and objective structure of the responsibility theory is in the form of elements with the concept of risk as the core, on behavior and the illegal result to judge, in some cases don’t need into the class of responsibility judgment. The third chapter discusses the significance of the objective imputation theory to the criminal law of our country, and thinks that the main significance lies in the importance of our country’s judicial judgment to the independent value of the standard.