作为冗余理论的刑法学因果关系学说

On the Redundancy of the Theories of Causation in Criminal Law

刑法学诸因果关系学说存在以下方法论问题:没有将基于因果关系的理论涵义和性质判断因果关系的标准问题与在程序上判断因果关系的经验标准问题区分开来;提出的问题为条件关系公式所限定和误导;对已给定的行为与结果之间联系类型的确定属于对个别性事实问题的判断问题,而不是具有普遍意义的理论问题;没有将归责的事实基础问题与归责问题区分开来,至少没有彻底保持这种区分;没有将作为单纯外部评价的法律前责任问题与实体法责任问题区分开来,从而误将法律因果关系的成立与实体法责任的成立等同。因果关系、法律前责任、实体法责任是三个不同层面的问题,决定了刑法学因果关系学说本质上是一种冗余的理论。

As a methodological problem,the present theories of causation in criminal law fail to distinguish the issue of criterion based on the theoretical meaning and nature and that of experienced criterion to judge the causation in judicial procedure;The questions raised are misled by the but-for formula;It is the issue of judgement of individual factual question to determine the type of connection between the given conduct and effect,but not that with universal theoretical meaning;They fail to distinguish the issue of responsibility and that of factual basis of responsibility,at least fail to thoroughly keep the difference between them;They also fail to distinguish the responsibility as issue of purely external post-law evaluation and the liability in substantial law,and consequently identify wrongly the establishment of legal causation and that of liability in substantial law.Causation and responsibility and liability in substantial law are three issues of different levels,which essentially determine the redundancy of the theories of causation in criminal law.