Research On The Application Of The Theory Of Standard Protection Purpose In The Imputation Of Negligence

The old negligence theory emphasizes the foreseeable possibility of responsibility,and regards negligence as a subjective liability problem,and does not focus on the act of execution;the revised old negligence theory proposes that act of execution plays an important role in the imputation of negligence,but in the actual imputation,subjective consciousness The important thinking has not changed,and the act of implementation has not played a substantive role.Although the new negligence theory has seen the disadvantages of the subjective conviction of the old negligence theory,it subsequently proposed that the obligation of avoiding the result should be regarded as the responsibility of the negligence on the premise of foreseeing the possibility.The focus is not only that there is no way to limit the imputation,but also based on the foreseeable possibility,which leads to the contradictory conclusion that if there is no foreseeable possibility,there is no result to avoid the obligation.In fact,the foreseeable possibility dominates the imputation.In short,the traditional structure of negligent criminals has consistently fallen into the swamp of "subjective imputation".The traditional negligence theory structure and theories in the past are not enough to support the task of imputation of the entire negligence system.The key to the problem should be the lack of "normativeness".Although the new negligence theory adopts the theory of result-avoidance obligation to make the attribution of negligent offenses somewhat normative,the negligence structure based on the foreseeable possibility and causal equivalence theory cannot change the status quo of attributable liability,not to mention the result.There is no need to avoid obligations.In order to standardize the imputation of negligent criminals,we need to explore a new type of imputation theory,reorganize its logic,and establish a brand-new normative imputation system.Since objective imputation is a set of normative imputation system,normative protection purpose theory is the central theory under the objective imputation system,which embodies the normativeness of objective imputation.Therefore,the negligence structure can use the objective imputation system.First of all Resolve the disputes about the purpose of normative protection,and then clarify the position of the theory of normative protection purpose under this system and the role it plays in the imputation of negligence,so as to point out the direction for the normative imputation of negligence.The article consists of four parts,the content is as follows:The first part sorts out the development context of the theory of the purpose of normative protection,and draws a preliminary view on the theory of the purpose of normative protection through summary,comparison and analysis.Professor Müller is the founder of the normative protection purpose theory,but at that time he did not realize the real function of the normative protection purpose.Professor Engisch proposed a two-stage imputation criterion,which is no longer based on the result norm,and is separated from it.The idea of equivalent judgment and the theory of normative protection purpose are developed rapidly under the leadership of Professor Roxin and Professor Rudolphi.Both Professor Rudolphi and Professor Roxin believe that paying attention to the purpose of normative protection is the criterion for risk realization,The focus of its function should be on the evaluation of the implementation behavior.The second part expounds the basic connotation of the theory of the purpose of normative protection,and demonstrates the connotation and scope of the norms of attention,including the explicit provisions of the criminal law,the legal norms to be quoted in the express provisions,and the provisions of the criminal law that are not expressly provided for citation but are required in accordance with specific circumstances.Other open norms related to criminal law are cited;it demonstrates the difference between the purpose of normative protection and legal interest.The former tends to be a methodological concept,while the latter is a substantive concept;it demonstrates the "purpose of normative protection",This purpose not only represents the original intention of the legislators,but also comprehensively considers the existing values,criminal policies,social development and other objective conditions of modern society;it expounds the method of exploring the purpose of normative protection,in order to construct the goal of normative protection as the core The path to imputation for negligent offenders is to pave the way.The third part expounds the justification of the purpose of normative protection as the path of negligence,discussing the structure of negligence and the current path and defects of negligence,including the imputation path with the obligation of foreseeing the result and the obligation of avoiding the result as the core.Defects,discusses the rationality of the negligence imputation path with the purpose of normative protection as the core.By comparing the objective imputation structure and the equivalence causality,the logical structure of objective imputation is reasonable,and equivalence causation has ontological theory.Therefore,we chose a highly standardized and objective imputation structure;through analysis,comparison and positioning with several lower rules in the traditional negligence structure,the rationality analysis and the question of how to choose in the negligence imputation were carried out.,It is concluded that the objective duty of care and the foreseeability of the result are replaced by the criterion of care and the purpose of the criterion of care in the purpose of normative protection respectively.The result is omitted to avoid the application of the duty,and the possibility of result avoidance is the same as the purpose of normative protection in negligence Work in synergy.The fourth part discusses the development of the purpose of normative protection in the imputation of negligence.First,in order to resolve the dispute between the theory of normative protection purpose and the application of the principle of reliance,it demonstrates the irrationality of the application of the principle of reliance;it demonstrates in detail the purpose of normative protection and negligence.The illegal relationship distinguishes the norms of attention and the norms of constitutive elements,and discusses how they realize the attribution of negligence.Based on the above analysis,a new type of negligence attribution path is obtained:clarify the protection purpose of the violation of the norms of attention（permissible risk range）→Implementation behavior exceeds the allowable risk range and creates prohibited risks→Equivalent fact screening（the third party responsibility,the victim’s self-risk responsibility,abnormal causality and other factual conditions）→The result is within the purpose of paying attention to the standard protection→The result falls within Under the protection purpose of the constitutive elements→imputation of the perpetrator.Finally,according to this new type of negligence imputation path with the theory of normative protection purpose as the core,some practical cases are analyzed.