评山中敬一的客观归属论

On the Theory of Objective Imputation of Yamanaka

山中敬一是日本刑法学界研究客观归属论的代表者。他以传统理论的局限性和现代社会的需要为切入点,展开以危险制造和危险实现为基本要素的客观归属论。山中的客观归属理论不足有三:一是前提性分析不充分,忽漏了对作为意识问题的主体及参加到归属过程中的参与者的分析;二是缺乏对现代社会风险的深刻洞见,没有超越传统因果关系论的局限;三是客观归属类型的预设目标不明确,过于复杂从而难以把握,而且存在漏洞。

Yamanaka is the most important scholar in Japan on the study of the theory of objective imputation. He takes the limits of traditional theory and the needs of modern society as the breakthrough point, put forwards the theory of objective imputation on the elements of creating risk and realization of the risk. The critical study on his theory of objective imputation is helpful to have a more deep understanding on the theory, and it can arose the group of the criminal law and the whole law attach importance to, and evolve us study and apply the theory, there are three questions to be attempted： the First, the analysis of the premise are inadequate, neglect the subject in the question and the actors who take part in the process of the imputation; the second, there is the lack of insight on the social risk in the modern society, and do not exceed the limits of the traditional causational theory ; the third ,risk of deep, the target of the types of objective imputation is not clear, it is hard to grasp it , and there is loopholes in them.