客观归责理论

On the Theory of Objective Imputation

因果关系的判断,是刑法学上的难题之一。大陆法系多以"相当因果关系说"作为因果关系的判断基础。德国自1970年代开始,出现"客观归责理论",在学说与实务上渐渐受到重视。运用客观归责理论来处理因果关系,得到的结论与运用相当因果关系说相差无几,但是对于少部分的案例,处理结果可能不同。客观归责理论有三个思考层次:第一,以"是否制造法所不许的危险"为判断的起点,如果行为的危险性是受到容许的,即使有死伤的结果,这个结果一概与行为无关;第二,继续追问,危险行为是否与结果的发生有常态上的关联性;第三,针对很少部分的案例,还要再追问,危险行为所引致的结果,是否在"构成要件的效力范畴内"。

The determination of causation is one of the predicaments in criminal jurisprudence. The criterion of ＂proper causation＂ is mostly adopted in the civil law system. The theory of objective imputation has been established since 1970s and has the tendency of becoming the mainstream theory. Except for a few cases, the theory of objective imputation can reach nearly the same conclusion as the proper causation criterion does. Based on the theory of objective imputation, three levels of judgment are involved： firstly, it should start from judging whether the danger prohibited by law has been caused. If the danger is within the limit of law, the damage of injury or even death can not be imputed to the conduct. Secondly, it should be further inquired whether the dangerous conduct has normal connection with the damage？ Thirdly, in view of a few cases, a continual inquiry should be undertaken that whether the damage caused by the dangerous conduct is kept within the effect scope of constitutions of crime.