Objective Imputation Theory Research

The Objective Imputation Theory derived from Germany is regarded as a substantive theory about illegality in the eyes of the criminal theory system which is characterized with stratum trait and distinction of illegality and culpability. The Objective Imputation Theory we are well-known is originated the textbook, whose author, Roxin, is the representative of the Legal Interest Theory. Therefore, what we cognized and comprehend about this theory is branded seriously with the Legal Interest Theory too. However, the Legal Interest Theory is not the unique one about the essence of illegality, whose rival-the theory of norms-should not be neglected. The debate between the Legal Interest Theory and the Norms Theory will has a deep impact on the comprehensive of the Objective Imputation Theory.The Objective Imputation Theory advocated by Roxin makes the criminal system much logically and makes a contribution to the development of the Criminal Jurisprudence. But this theory is not perfect. On the contrary, it has lots of problem to tackle. But it also has a lot of problems. For example, the objection imputation theory when interpreting some special situation, such as the risk crime and negative crime, the increased risk and the actor’s special cognition, the Objective Imputation Theory will be shortage of explanatory power or be paradoxical. From the root of the Legal Interest Theory, we can see that although the objection imputation advocated by Roxin is based on the theory, it also mixed with some opinions of the Norms Theory. The fundamental problem is that in the identification to illegality, Roxin adopts a not thorough normative standard.The factors can be contributed to these problems. First of all, the objection imputation theory regards the conditional relationship as its premise in logic. However, the default of the conditional relationship theory will caused some dilemma in the imputation of risk crime and negative crime. Because the former does not necessary the conditional relationship, and in the latter, there is no neutral act. Secondly, although the objection imputation theory can distinguish the attribution from the imputation, it has much limitation. The imputation is only a kind of normative judge in the meaning of methodology, and does not transcend the category of the Legal Interest Theory. The source of the problem consists of the illegality identification from the Legal Interest Theory only, and neglects the significance of these concepts-normative expectation and social role in the latter. Consequently, we can try to solve the problem in the way of drawing into the Norms Theory represented by Jakobs.Drawing into the new angle needs a theoretical background of adequate relationship between the interest theory and the Norms Theory. Meanwhile, drawing into the angle is compatible with the imputation principles, such as the risk jurisdiction, the self-responding to prosecution and the backtracking prohibition. In this way, centered on the normative expectation and the viewed to the social role, we can explain those problems in the angle of the Legal Interest Theory, as well as endowed the Objective Imputation Theory with conspicuous methodology value and practical value.One thing worth mentioning is that the new interpretation is not an overturn to the traditional one, which is determined by the relationship between the Legal Interest Theory and the Norms Theory. In contrast, this try only amends some imputation principles-backtracking prohibition, trust principle and risk concurrence. As to its imputation regulations, the two angles have no essential distinction. However, the Objective Imputation Theory cannot be without a problem after drawing into the Norms Theory angle, which is impossible and realizable. For example, the lacking specific situation and the objective imputation to danger crime and negative crime, as well as the scope availability of the constitutive requirements all have large space to improve.At last, the Objective Imputation Theory can be comprehended from the angle of the Norms Theory:in the intentional crime, the illegality and the danger act should be identified according to whether the actor intervenes the normative expectation and makes unallowable risk, and the standard accomplished offense should be identified according to whether the actor actualizes the unallowable risk in the scope of the protection purpose of the norms; in the negligent crime, due to its premise-some actual damage-and has no problem that whether accomplished, so we need to combine with the two levels to identify the illegality. So as to the scope availability of the constitutive requirements, it is only a complement to the protection purpose of norms, and not a progressive level to the creation and realization of unallowable risk.