The Attribution Theory Of Negligent Crime

Negligent crime is a typical mold of consequential offense,which means there must be a certain connection between the result and the conduct if the result can be attributed to the perpetrator.For a long time,the penalty range of the negligent crime has been too wide in judicial practice.Generally,the judicial authorities will confirm the establishment of a negligent crime when there are the illegal behavior and the consequence.However,in some specific situations,the result may not be attributed to the actor because of the issue of “probability of consequence avoidance”.It is beyond the range of the criterion’s ability to avoid the consequence if the result would still occur when the actor follows the instruction of the criterion,which could show that there is not any certain connection between the result and the behavior.In this case,it would be unfair and meaningless to give a punishment.Therefore,it is helpful to limit the punishment scope of negligent crime by considering the possibility of avoiding result,and the key point is to judge whether it is possible to avoid the consequence,which relates to the method of “legitimate alternative behavior”.Possibility of avoiding result can be divided into two kinds of situations,the inevitable result and the possible result.The former rejects the attribution apparently.But it is difficult to make a simple conclusion that whether the latter one affects the attribution or not.In this situation,the question needs further discussion.On this issue,there are three representative opinions,the “certain avoidance theory”,the “risk-increasing theory”,and the view of “over 50% possibility of avoiding the consequence”.The first one believe that the attribution is legitimate only when the behavior that fully complies with the prudent duties can certainly prevent the consequence,while the second one insist that the attribution would be right if the legal behavior is possible to avoid the result.The third one is based on the second one,and the different point is that the third one require the possibility of avoiding the result must be over 50%.Alternative behavior of performing duties and hypothetical causation are different concepts both in the basic nature and the thinking method,so there would be no problem to use the method of “legitimate alternative behavior” in the field of the attribution of negligent crime.The conduct should be attributed only when complying with the prudent duties can certainly avoid the result because of the principle of legality and the doctrine of non-existence of doubted guilt,therefore,the risk-increasing theory can only be an exception.The view of “over 50% possibility of avoiding the consequence” has no maneuverability,which means it is not a choice either.