刑法因果关系论之危机、反思与出路

Crisis, Reconsideration and Way out of the Theory of Causality in Criminal Law

刑法中研究因果关系是为了解决归责问题,因而不能用哲学因果关系的研究代替之。而事实因果关系根本不需要在刑法的领域探讨。刑法所要解决的只是法律因果关系的问题。为了与刑法的宗旨相连,并且坚持因果判断上的客观性,不如将法律因果关系的概念转化为客观可归责性的概念,并借鉴德日有关理论,创设具体的判断规则。

There are many problems in the research on criminal causality. On one hand, the status of causality in the theory of criminal law is not accurate, on the other hand, how to judge it is difficult. It is not only tend to let subjective element into range of analysis ahead of time, but also difficult to put down the argument between the theory of necessity and accident. There are also problems in logic. In fact, investigating causality in theory of criminal law is to solve the problem of liability fixation, so we can't substitute it for philosophy research on causality. Factual causality needn't be discussed, while legal causality is the sole problem to be solved in criminal law. In order to connect with the purpose of criminal law and withhold objectivism in judging causality, we might as well convert the concept of legal causality to concept of capability of objective liability fixation, and introduce some relevant theory in Germany and Japan to expound specific judging rules.