假定因果关系与合义务的择一举动辩正

Identification of Relationship of the Assumed Cause and Effect and Alternative Action of the Obligation

假定因果关系理论与合义务的择一举动理论在传统理论中是两个相互平行的判定因果关系的原则,看似互不干涉。其实,两个原则之间不仅存在交叉,而且难以区分。实际上,假定因果关系理论与合义务的择一举动理论都是为了解决当存在假定结果与现实结果,而抽象结果无法避免的情况下,能否对行为人归责的问题。在这一点上,学界以作为与不作为、故意与过失、介入因素影响力等因素作为判定归责的标准各自存在缺陷。建议通过结果的具体化、风险升高理论、义务型结果归责等解释进路广泛承认因果关系,并将结果归属于义务违反者,再通过预见可能性限缩处罚范围。

The assumed cause and effect relationship and alternative action of the obligation are different rules of imputation in classical theory and they are seemed to have no interference with each other. However,the two rules differ only superficially on the descriptions of their results,whereas the overlap not only exists between them,but also it is hard to distinguish from one to the other. Actually,the theory of causal relationship and the theory of the choice of the obligation both aim at whether the liability of the actors can be concluded in case the abstract result is unavoidable. It is as here that the academic world takes it as the standard to judge the liabilities and the existing flaws by referring to the actions or inactions,intention or negligence,the power of intervening impact,and other factors. This paper suggests that the causation be admitted through the embodiment of the results,application of the theory of increasing the risks and voluntary imputation of duty,and so on,to attribute the result to the breach of the obligation,and then to narrow the scope of punishment by foreseeing the possibilities.