On The Result-avoiding Obligation Of Negligence

In today's society,the rapid development of science and technology has brought many conveniences to people,but has also increased the hidden risks of people's behavior.In order to prevent such risks,the Criminal Law adopts the negligent offences law to pay attention to such risks.However,this approach has opened the door to the abuse of negligent crimes,leaving people at all times in fear of punishment for unavoidable consequences.So,the theoretic community put forward the theory of result-avoiding obligation and tried to restrain the source of such negligence.But as a result,the theory of result-avoiding obligations is not yet mature in China and still faces many controversies.So,there is space for further discussion.First of all,it is necessary to carry out an analysis on the dilemma and causes of the theory of result-avoiding obligation.Firstly,the position of result-avoiding obligation in the criminal theory system is controversial.For the result-avoiding obligation,there are mainly the theory of belonging to the elements of crime,the theory of belonging to the illegal,the theory of belonging to the responsible,and theory of belonging distinctively.Moreover,there are different views within the internal of respective claims on the specific attribution of the result-avoiding obligation.Secondly,the relationship between the result-avoiding obligation and the attention obligation is controversial.There is mainly the theory of belonging to the attention obligation,the theory of the same as the attention obligation,and the theory of result-avoiding obligation's independence.Thirdly,the theory of result-avoiding obligation faces challenges on the rule of result-avoiding possibility.Questioning mainly comes from two aspects:the rationality of the rule of result-avoiding possibility,and the operability of the rule of judging the degree of result-avoiding possibility.Second,analyze the causes of the predicament faced by the theory of result-avoiding obligation and find a way out.For the first dilemma,the author thinks the main reason for the controversy over the position of the theory of result-avoiding obligation in the criminal theory system is that the source of the legitimacy of the result-avoiding obligation of effects is ignored.It can be seen from the perspective of the legal spirit that "the law don't make people do impossible things",the occurrence of subjective responsibility,and the exemption of objective behavior.The purpose of the result-avoiding obligation theory is to deny the validity of the norm and thereby relieve the actor's normative responsibility.Therefore,the obligation to avoid result should fall into the category of anticipatory possibilities at the stage of responsibility.For the second dilemma,the author thinks the main reason for the dispute over the relationship between the result-avoiding obligation and the attention obligation is that the problem to be solved by the theory of result-avoiding obligation is unclear.From the background proposed of the theory of result-avoiding obligation,its functional distinction from the result-foreseeing obligation,and the relationship between the virtual and actual elements in the rules of result-avoiding possibility,it can be determined that the result-avoiding obligation is a subordinate concept of the attention obligation.For the third dilemma,the author thinks that the question about the rules of result-avoiding possibility is mainly due to the lack of clarity on several basic issues of the rules.From the standpoint of the rules,the basic ideas of the rules,the scope of application of the rules,and the problems to be solved by the theory of result-avoiding obligation,it is entirely possible to formulate a set of rules that can operably get a result-avoiding possibility in line with the current judicial level.In the end,On the basis of the foregoing analysis,the structure of the result-avoiding obligation theory is reproduced.The core content of the result-avoiding obligation theory is the rule of result-avoiding possibility.The author thinks that the design should focus on the selection standard of legal alternative behavior and the degree standard of likelihood of result-avoiding after clarifying the authority of the rules under the category of expected possibility.Based on the premise of the first two chapters,the selection standard of legal alternative behavior should be placed in the context of the attention obligation,and the degree standard of likelihood of result-avoiding should aim at operability.Then,based on the standard doctrines proposed by the predecessors,a more comprehensive plan is proposed.The standard of alternative legal behavior should be based on the assumption of a permissible danger and supplemented by relevant restrictions,and use the safety rules behind the original illegal act,the interest purpose of the original illegal act,and the time point of the proximate effect of the original illegal act as restrictions;the result-avoiding possibility standard should adopt dominance confirmation standard whose content is the "obvious risk increase",but the outcome of the probability should be quantified as a percentage scale to provide a basis for sentencing.In addition,the structure of result-avoiding obligation theory may encounter criticisms from other theories,so here to give respondence in advance.Firstly,as for the wonder of the specialty of the result-avoiding obligation of negligent offences from intentional offences,we should respond from the purpose and actual function of the two result-avoiding obligations.Secondly,as for the torture about its position in the theory of result-avoiding obligation from the result-avoiding ability,it can be responded from the nature of result-avoiding ability and the purpose and the scope of the result-avoiding obligation theory.Thirdly,in response to the challenge of attempting to replace the theory of result-avoiding obligation from the theory of causality,it should be responded from the limitations of the possibility of result-avoiding,their difference categories,and their different purposes and functions.