Study On The Possibility Of Avoiding The Consequence Of Negligent Crime And Its Judgement

Subject to Article 15 of the Criminal Law(negligent crime)and Article 16(irresistible causes),when there is no relationship between the violation of the norms and the occurrence of consequences,it means that the consequences are not caused by the negligence(carelessness or overconfidence)of the perpetrator,but by other irresistible reasons.That means even if the objective consequences are caused by the acts,the establishment of negligent crime should be denied.However,the traditional criminal law theory as well as the practice hasn't paid attention to the illegality relationship between behavior and consequences at the normative level in negligent crime,so it is necessary to introduce the discussion of the possibility of avoiding the consequence to judge this relationship.This paper is divided into four parts.The first part mainly defines the possibility of consequence avoidance,which is divided into two sections: the first section points out that although there are scholars distinguish the possibility of consequence avoidance in advance from the possibility of consequence avoidance in afterwards in theory,this paper discusses the possibility of consequence avoidance which reflects the illegality relationship between the behavior and the occurrence of consequences.According to this classification,it belongs to the possibility of consequence avoidance in afterwards.Secondly,the paper distinguishes the possibility of consequence avoidance from the possibility ofconsequence prediction and the violation of the obligation.It is clear that the possibility of consequence avoidance has independent value,pointing out the relationship between the illegality of the act and the occurrence of the consequences,which cannot be covered or replaced by other theoretical concepts.Section 2 seeks the basis for negating the establishment of a crime when the consequence is unavoidable from the current criminal law norms and the criminal law theory.The paper points out that the real reason for not constituting a crime lies in the fact that there is no relationship between the illegality of the act and the occurrence of the consequences at the normative level.The second part discusses the premise of judging the possibility of consequence avoidance lies in determining the factual causation.This part is divided into three sections.The first section aims to clarify that the possibility of consequence avoidance does not belong to the level of factual causation.Because of the attribution in criminal law should be judged only by facts,neither the theory of condition nor the theory of equivalent causation can replace or contain the normative evaluation related to the possibility of consequence avoidance.Section 2 puts forward that the determination of factual causation is the premise of judging the possibility of consequence avoidance.The paper points out that "Prerequisite" not only refers to the first or second step of judgment,but also has the substantive significance,selecting factual factors for judging the possibility of consequence avoidance at the normative level,eliminating the factors which have no effect on the causal course of the damage.The third section focuses on the a controversial issue,the relationship between legal alternative behavior and hypothetical causality,pointing out that both of them use the hypothetical thinking method.It is necessary and reasonable to use legal alternative behavior theory even if in fact judgment the hypothetical thinking is rejected.The third part is divided into three sections: The first section discusses that the possibility of consequence avoidance belongs to the objective imputation at normative level,and should be placed in the stage of risk realization rather than risk creation.The second section elaborates the judgment of the possibility of avoiding the consequence with cases,including how to choose of legal alternative behavior andidentify the same consequences,the core of which is to obey the protection purpose of the norm.Section 3 starts from the substantive reasons for denying objective imputation and the establishment of a crime,to reflect on the current theoretical opinion that the inevitable consequence equals to innocence,which may be not correct enough.Because even if the damage cannot be avoided,if only the illegal behavior can individually cause the damage,that comes a crime.The paper advocates "Double check",which means that besides judging the possibility of consequence avoidance by using legal alternative behavior,we should further positively judge the relationship between the normative violation of the behavior and the occurrence of the consequence.The fourth part discusses a special issue: whether it also establishes a crime when it is not sure that the legal alternative behavior can or cannot avoid the consequence.It is divided into two sections: The first section introduces the differences between the general theory and the risk elevation theory.Section 2 refutes the risk elevation theory and re-proves the general theory,which is based on clarifying some misunderstandings of the risk-raising theory.The paper points out the risk elevation theory has nothing to do with the principle that doubt favors the defendant,but it replaces the establishment standard of fault result crime for the dangerous crime,which violates the criminal law's principle "nullapoena sine lege”.In addition,this theory tries to use the quantitative analysis of risk to solve the qualitative judgment of causality,which is impossible.On the other hand,the general theory obeys the"nullapoena sine lege"principle.And as long as according to the viewpoint of this paper to judge the possibility of avoiding the consequence,the adoption of the general theory will not lead to the harmful consequences of indulging crimes.