On The Possibility Of Avoidance Of Results And The Imputation Of Negligent Offender

In fact,it is not only more systematic,but also very helpful to see the nature of the problem,and then put forward more appropriate theoretical views.What is the specific meaning of the possibility of result avoidance? System status? Results what is the relationship between the avoidance possibility and the theory of risk increase and avoidability? Results what problems should be solved in the imputation of negligent crime? These are the questions that need to be discussed when discussing the possibility of result avoidance.The paper is divided into four parts.The task of the first part is to define the problem,and to explore the background of the result avoidance possibility.The possibility of result avoidance in negligent crime includes two aspects: the possibility of result avoidance of facts and the possibility of result avoidance of norms.The theory of result avoidance possibility of fact has a long history.The theory of lack of result avoidance possibility of fact is recognized by the old and new fault theories as having the effect of excluding responsibility,while the standard result avoidance possibility is the creation of the new fault theory.It relies on a hypothetical causal structure to examine whether the behavior in line with the standard will also lead to the same result as the behavior in violation of the standard We should limit the cause and effect chain of negligent crime and realize the balance between punishing crime and safeguarding freedom.This thinking logic is used for reference by the objective imputation theory and embodied as "the substitution of legality".By paying attention to the purpose of regulating protection,the test rules of "the substitution of legality" belonging to the level of realizing the illegal risk are restricted,and the general prevention function of penalty is implemented.In fact,the theory of equivalence can not avoid the problem of normative result avoidance possibility.However,due to its lack of systematic normative evaluation framework,the theory is inevitably inconsistent when trying to accept the theory of result avoidance possibility.The second part expounds the basis of the crime which lacks the possibility of result evasion,which can also be said to be the systematic status of the possibility of result evasion,which is divided into two levels: stratum theory and factor theory.First of all,it is unreasonable for the old theory of fault to reduce the possibility of result avoidance to the possibility of result prediction,and put it into the discussion of the class of culpability.After the new theory of fault promotes the wrongfulness of negligent crime to a more important position and takes the obligation of result avoidance as the core of negligent wrongfulness,the position that the possibility of result avoidance is a problem of negligent wrongfulness has been widely accepted Admit.Secondly,the traditional negligence theory constructs the system of the duty of care,the possibility of foreseeing the result and the possibility of avoiding the result to construct the lawlessness of the negligent crime.Aiming at the problem of the possibility of avoiding the result,it respectively puts forward the views of negating the causality and negating the action of executing(the violation of the duty of care),but these two views fail to realize that the possibility of avoiding the result is regarded as limiting the establishment scope of the negligent crime Element,it involves actually the imputation of negligent crime.Therefore,the objective imputation theory,which is based on unifying the system of negligent offense and strictly distinguishing attribution from imputation,emerges as the times require.This system can better explain the nature of negligent offense,properly deal with some difficult situations that can not be dealt with by previous theories,and reasonably delimit the scope of the establishment of negligent offense,which is widely accepted.The third part introduces and analyzes two theories of the possibility of result avoidance: the theory of risk increase and the theory of avoidability.On the basis of realizing that the possibility of avoiding the result is actually an objective imputation problem of negligent crime,the theory of risk escalation and the theory of avoidability respectively give their own solutions: the theory of risk escalation holds that as long as the behavior of the actor increases the risk of legal interest infringement,the result should be imputed to the actor;and the theory of avoidability holds that at least a few should be achieved Only when the possibility of avoiding the result is near certain,can the actor be held responsible.In fact,the theory of risk increase weakens or even violates the principle of liability fixation that "the behavior must have the connection between the violation of norms and the occurrence of results to make the judgment of liability fixation".Forcibly reducing the requirements of the connection of violation of norms will lead to the unlimited expansion of the scope of duty of care that can be attributed to responsibility,and there is the suspicion of blindly expanding the scope of punishment for negligent offenders.The obvious deviation from the widely accepted "crime is only light" has also made it highly criticized by the academic community.In contrast,the theory of avoidability has resisted the adverse effects of the preventive criminal policy that has prevailed since the beginning of the industrial society.Adhering to the modesty of criminal law can effectively guarantee the freedom of the people.It has certain positive significance for China,where the "criminal policy of criminal law" is becoming more and more popular.In judicial practice,the theory of avoidability can also play a role in supervising and urging the court's extensive recognition of traffic accident criminal cases,the prosecution's inadequate performance of the burden of proof,and the perpetrator's easy access to crime.The fourth part discusses the three problems in the process of result avoidance possibility judgment,and puts forward the solution of this paper.In the specific theoretical operation of the possibility of avoiding results,there are three problems: it is difficult to distinguish the replacement behavior of the rule of law from the process of assumed cause and effect,it is difficult to select the replacement behavior of the rule of law,and it is difficult to define the identity of infringement results.For the first problem,the correct solution is to recognize the logical similarity between the replacement behavior of the combination rule and the hypothetical causal process,but it does not mean that the replacement of the combination rule is unreasonable,because the different positions of the two in the responsibility attribution are determined by the theoretical structure of the objective responsibility attribution.For the second problem,we should pay attention to two aspects: the choice of legal alternative behavior needs to pay attention to the assumption of process factors and the choice principle of legal alternative behavior itself.First of all,the assumed factors that can be taken into consideration must be the factors that can be controlled,influenced and directly related to the effectiveness of norms.Secondly,the replaced factor and the replaced factor should belong to the same normative constraints.Finally,if there are many alternative behaviors that meet the above requirements,the behavior closest to the allowable risk limit should be selected.For the third problem,it should be recognized that too strict or too wide restriction of the same result is not conducive to the identification of the same result.The correct standard should be the theory of moderation and restriction,that is,the same infringement result should be properly limited,requiring the same subject,content and place of the infringement,but not the same way of infringement.