过失实行行为客观不法论究

Study on Subjective Illegality of Negligent Perpetrating Act

过失实行行为是违反了结果回避义务的行为。过失实行行为的本质在于制造并实现不被容许的风险。对过失实行行为客观不法的认定,应坚持结果回避义务此一形式标准对判断行为是否制造了不被容许的风险的决定作用;结果回避的不可能性导致结果回避义务的无效性;当法益侵害结果的发生不在注意规范保护目的范围内时,应否定过失实行行为的存在;行为人违反结果回避义务制造并实现了不被容许的风险,方能将结果归责于行为人;风险升高理论是对违反结果回避义务行为与不法结果在无法确证因果关系时仍应予以客观归责的补强。

The act of negligent constitutive requirements is the act that has violated objective duty of result avoidance. Negligent crime is the＂Aggregated consequential offense＂of the administrative banning law. Committing risk is not allowed by law is in essence negligent perpetrating act. The reorganization of the act has produced risk should depend on the organization of the violation of duty of result avoidance,the impossibility to avoid result leads to the invalidity of the duty of result avoidance,the act that has violated the duty of result avoidance and produced risk not allowed by law is negligent perpetrating act; the act that has violated the duty of result avoidance has not come true,it is not fit for the constitutive requirements; when the violating legal interests isn＇t in the protective scope of the rule,the act is also fit for the constitutive requirements,the actual act can＇t be evaluated as the negligent perpetrating act. The increased risk is that strengthens the objective imputation when the casual relationship between the act that has violated the duty of result avoidance and the illegal result is not easily conformed.