On the formula of judging criminal causation

Feng Jianjun0

 

 

[Abstract] clear causality in criminal law is the objective foundation, to determine the criminal responsibility. Based on the comparison of criminal law and the Anglo American criminal law theory of causality, the author thinks: the judgment of causality in criminal law, can draw lessons from "no A no B" (no harm behavior is no harm result) formula, the general is not in fact in the criminal law causality and legal causality. But with a number of occasions intervening factors in risk behavior and the results, it is necessary to distinguish the relationship between criminal factual causality and legal causality. Should first determine the conditions of the system using the above formula (the causal relationship of fact level), and then the analysis on result size, whether the legal causation is to further clarify the behavior and results.

[keyword] causality in criminal lawJudging formulaConvictionObjective foundation of criminal responsibility

 

A

Causality in criminal law, the relationship between behavior and harmful result is cause and the cause of the.[II]It is always the difficulty of criminal law. Causality in criminal law must be resolved in theory, but also need to in the judicial level of causal judgment under the guidance of. Continental Europe and Japan and Anglo American criminal law theory have made outstanding contributions.

(a) the causal relationship between the continental law system, from its origin, had just crime in question, then up to the general theory of the general principles of criminal law, and through the field to the compliance process elements from behavior. When it is considered in the theory of behavior, causal relationships have been emphasized, while the elements in it is the compliance category, its status is similar to the decreased, but that still believe that the causal relationship is the objective basis for determination of the crime, the criminal responsibility (also confirmed that no causal claims responsibility, that can solve such problems). How to judge the causality in criminal law? The continental law system initially put forward "and the condition that" formula: no A no B (no harm behavior is no harm results).

"Conditions" that all the conditions are the reason, also known as conditions that cause or equivalent conditions. For example, a slight B, B is wounded and hospitalized, a fire caused by earthquake for the hospital, B fire die. No harm a, B will naturally not hospitalized, no hospitalization is no earthquake fires may. So no harm a without B result of death. Moreover, "conditions" that caused harm behavior and seismic a fire for the cause of death of the B, both are equally important in value.

"Conditions" is launched by Buri in Germany, he said: "under the concept of causality, established process can understand a phenomenon, the causal relationship if you want to grasp some specific phenomenon, we must turn confirmed on this phenomenon shows all the forces of a role. If so, the sum total of these forces, is the reason of this phenomenon. However, exactly the same as above, each part of these forces, still can alone to be considered as the reason of this phenomenon. Because of the existence of this phenomenon has great dependence on various parts of power, if removed from the causality of even one individual strength, this phenomenon itself does not exist.".^{[1] (p276)}This statement is more obvious than the common is: all the results; if one is missing, it cannot have the result. So, not on the conditions and non essential condition essential conditions.

According to Mr. Zhang Mingkai in the "causation in civil law countries, the theory of" summary, conditions in addition to Buri about philosophy and natural science according to the theory, there are three advantages: first, according to the condition of no consequence no formula, one that can very easily solve the causality problem. Second, conditions that can make the criminal responsibility foundation clear, which is conducive to the stability of the law. Third, not too narrow the scope of punishment condition.

Conditions have been criticized causes and causal relationship. Both the starting intention is to limit the conditions that incurs the penalty too wide-ranging shortcomings. The reason that, should distinguish between the conditions and reasons, to find a cause harm result in many conditions, the other conditions are only simple conditions; causal relationship that, in most conditions, where has a relationship with the condition, which is why the result of. What is pretty, causal relationship internal and subjective, objective, compromise said three kinds of claims.[3]Causal relationship in addition to the above characteristics of causality in criminal law defines the scope of the outer, there is a characteristic, whether has the equivalent between the behavior and result that is known to most people's behavior standard, but its internal three claims for what is judgement produce opposite equivalent. Generally speaking, they are not completely out of condition. Moreover, the reason that the tendency to simplify the problem again, already had no place in the mainland legal system country criminal law theory; causal relationship "pretty" itself is a very vague concept, otherwise, it may not produce intense debate. From the general trend, causal relationship of the objective has become the general trend, but it says there is no substantial difference in the conditions of determination.[4]At present, the condition is the German judicial practice and theory of criminal law theory, in Japan, the mainstream of trial practice is to take the conditions.

There are conditions regarding the relationship between action and results, in general is easy to judge, but some places are in need of special note (later in detail).

(two) in the UK, the first act strictly liable for their actions, the causality of crime is the behavior and the results of standard. When the crime constitution theory formation and development, the causal relationship of Anglo American law is still an important criterion to identify a crime. Anglo American criminal law from the pragmatism view, pay attention to the specific principles of causality from past precedent. They generally believe that, the causality in criminal law distinguishes two levels, one is the cause in fact, two is the law of cause and effect relationship, namely double level reason called "". Relationship of cause in fact, caused by the relationship between the first action is objectively exist outside of and results, in fact it is necessary conditions for logical relation. "". This means that "if not the defendant's conduct, this would never have harmful results." "There is no A no B" logic, in Anglo American criminal law is often referred to as the "but for" method, namely "hypothesis elimination method". As for legal reasons, is a valuable part in the law, to be the legal thought that we should let behavior causes harm to the result liability refers to a factual cause. Therefore, research on the "proximate cause", "general idea", "policy" and other types of views.[⑤]In common with these theories are required as the reason for the occurrence of behavior must play a bigger role.

If we compare the concept, criminal law and Anglo American criminal law causality scope, status and role, can be found that they generally similar, and they are the logic of "no A no B" formula to find the necessary conditions of causality in criminal law, as objective evidence of that crime, confirm the criminal responsibility. We think, such a "no A no B" formula in our country criminal causality theory and the judicial practice can be used for reference. The reasons are as follows: 1 of China's criminal law theory of causality in criminal law is that the causal relationship between behavior and harmful results. The 2 scholars generally think that causality in criminal law is a crime in the crime objective aspect content, so the harm behavior, is only restricted to the constitution the requested action, namely the implementation behavior, not including the preparation behavior. 3 the majority of scholars believe that the causality in criminal law is the objective basis for the conviction and criminal responsibility. Therefore, China's criminal law theory of causality concept scope, function and position, also with the western criminal law theory is close to, can learn from the "no A no B" condition formula of judging causality in criminal law judicial practice guidance.

In the use of "no A no B" formula of judging causality in criminal law, we should pay attention to the following characteristics:

1 were isolated, simplified.

On causality in criminal law, must be from the relevance chain exist in isolated study abstract. Because causality in philosophy is linked, in this phenomenon is known as the reason, is another phenomenon results. As a result in this phenomenon, it is another phenomenon. Moreover, we investigated the causal relationship, is the harm behavior and harm result (ACT) and the (possibility) of causal relationship, rather than a causal relationship between all the behavior and results.

2 time to back.

Also is the causality in criminal law is the role of the upstream, namely from the melon to the vine. As a result of drowning by a B in the sea to search for a will cause B to harm behavior in the sea.

Study the possibility to 3 content provisions of fact or law occurs as a result of the reality. This possibility can be from the crime type, the behavior way, object (the object of the crime and the behavioral object), time, specific conditions to be considered. For example, the defendant to the murder of his parents, the burnt ash after eating poisonous with to the parents in food. Soon, the parents just died. But the scientific experiments, these so-called "poison" and there is no possibility to deaths and injuries. Therefore, the defendant's behavior objectively and not likely to cause parents death really. For example, a blackmail B, B mercy psychology will be money to somebody. Here does not have the extortion crime causal relationship. Because, a threatening behavior does not make one afraid to deal with property in defect mode, does not have the extortion provisions of the mainland victims because the defendant acts of intimidation and fear the possibility of defect processing property.

At present, the application of "no A no B" formula can at least comprises the following aspects:

1 when the crime a crime, including some harm result, must prove that the result is caused by the behavior of the.

2 when the damage are caused by harmful behavior behavior, behavior person to responsible for the result of the. Such as behavior raped a female a in a moving vehicle, a struggling to jump to escape, the injury and death. People should be responsible for the death of man.

3 in those requirements of the behavior must be generated as a result of crime, does not distinguish between mild and severe consequences. Such as arson only require enough to endanger public security fire behavior constitutes arson, does not require the actual harm results.

4 in some requirements for the behavior harm result crime, the basic crime and aggravated consequence crime division. As the above described the rape of women by women jumped out of the car and the death.

5 causality of omission crime. On the causality of omission crime, there are two kinds of affirmation and negation. "From the norms of behavior meaning not as not only the 'no', but did not expect the law...... The causality should be understood from the view specification.".^{[2] (P296)}From the normative sense, not as the behavior person has "more as" obligations. If it is proved that the perpetrators have expected as a result of the law will not happen, causality can sure as and results.

 

Two

The above mentioned in criminal law causal relationship with "no A no B" formula in need of special note occasions:

Cut off 1 causal relationship. The relationship between the condition of being cut off, refers to the specific condition of a result has not acted, post conditions unrelated causes the result. On this occasion, the reason is not the result of the antecedent conditions. For example, a wounded B, killed 5 hours after the injury, but those 2 hours after the quake caused b is the collapse of the housing. On this occasion, even in the absence of injured behavior a, B also died at the same time, it does not admit a behavior is a cause of death of the B.

Interrupt 2 causal relationship. In the development process of causation in the intentional act, if the intervention of the third (some are thought to include negligence) or a natural fact, so, the causal relationship between behavior and result will interrupt. Such as a desire to kill B, but only the damage, B in the hospital, but since the earthquake caused the fire burned to death in hospital. In this case, the causal relationship of earthquakes in the natural fact interrupted between the behavior and B a death, a still negative for attempted homicide responsibility.

The causality between the 3 overlapping. Refers to two or more independent behavior, occur alone cannot lead to results, but the combined results happen. Such as a, B two people without contact together in C put poison in food. A single dose of poison (50%) will not cause C to die; but the dosage foot common two people death induced by C. Generally, a, B acts constitute murder accomplished offense.

3 alternative joinder of (causal dual)

Two or more behavior can cause the results, but in the absence of meaning of the contact, competing together led to the occurrence of. Such as a, B without meaning contact and shoot C, and C are a fatal hit. At this time, generally a, B should bear responsibility for the death of propylene.

Will Georgi probably explains this question, "if you choose to remove possible certain facts, if overlap removal can not produce certain facts, then, more than two conditions are other facts occurring conditions." Obviously, the "no A B" formula.

5 putative causal relationship. Although some behavior leads to the results of that happening, but even without the behavior, the other will produce the same results. Germany had such a case: the defendant drove the truck in a straight 6 meters wide road, on the left side of the B towards the same direction riding a bicycle. According to the rules, the car should keep a distance of 1.5 meters and a person, but only to maintain a distance of 0.75 meters. B is for drinking mud passed out in the car, the rear wheels crushed by. But even if the defendant to maintain a distance of 1.5 meters and the victim when driving, make sure the same accident probability is very high. In accordance with the "no A no B" formula, the defendant's conduct and death no causal relationship between the consequences. In fact the German case also support negative causal relationship.

6 obligations of the alternative actions. The act of people while the implementation of a violation of law, the occurrence of certain results, but even the observance of the law, also cannot avoid the same results. This is actually one of the putative causal relationship, no elaboration here.

6 kinds of special occasions described above, the causal relationship between interrupt theory has been criticized, is interrupted on the one hand to condition based positive condition, on the other hand, the negative conditions, went into stultify oneself. We think, the so-called "break the chain of causation theory" should be explained: assume that finding causality in criminal law is really going through factual causality and legal causality between the two levels, it has been mentioned in the criminal law theory and the Anglo American criminal law theory in the "no A no B" formula is coincident in at least the causal relationship of fact level. This one. Second, in most cases, without factual causality and legal causality relation between two levels (sometimes the boundaries between the two are not obvious), the "no A no B" formula can solve the causality in criminal law. Thirdly, in the so-called "break the chain of causation" situation, causation in fact is indeed exist, and can be used "no A no B" formula to determine the conditions of the system, but it is the law of cause and effect relationship exists between clear harm behavior and results, but also in the condition based system, further the role of the size of search conditions. This is a revision to the formula.

So, there are the factors involved in the criminal law causality in occasions of harm behavior and results with the existence of judgment, how to solve? Because of Anglo American criminal law theory was first put forward the double level reason, and it from the practical perspective of the harm behavior and harm result in many other factors of the occasion, so we can learn from their research to find some common rules.

In the so-called "break the chain of causation" occasions intervening factors may be the natural factors, the behavior of others, their behavior, the victim's own special physique. Whether "interrupt" has to be considered in theory: one is from the disruption of factors can people foresee as a standard; two is the intervening factors are independent from the previous behavior as standard, three is involved, to see whether the fair to the perpetrator to undertake the criminal responsibility of this point out. Because of the "Preview" and "justice" have strong subjective color, while the intervening factors are independent from the first action is to determine the causal relationship between the objective behavior, compared with the causal relationship between objective requirements, you can use the standard to discuss. According to this standard, regardless of the factors involved in the relationship between the original behavior may occur, and the final result is^{[3] (p66-70)}:

A, behavior and results completely cut off the necessary relationship. Is the previously mentioned in the causal relationship between the sever situation.

Two, some "intermediary" factors before the behavior and distribution, "the fact that the role of intermediary factors" is to force causes behavior extends forward. The use of "no A no B" guide "when judging causality harm result is caused by the harmful act" by the people have mentioned earlier, that this is the case.

Three, intervening factors is not decided by previous behavior, dominance, but independent, must at the same time, also did not cut off the first action causes stress on the completely after. The so-called "break the chain of causation" may exist in this case. At this time, to distinguish between different situations, the existence of behavior and the original results between the legal causation judgment.

The 1 Act provides only the premise, has no positive effect on the results. You can deny that they are legal causality. Interruption of the so-called "causal relationship" "".

The intervening factors behind the 2 for results also played a certain role, but did not deny the original decision role behavior. This is the aforementioned double causality condition.

The 3 act to implement the behavior itself has harmful results in strength, implementation and intervening factors only hinder the positive measures could avoid results, such as after wounding, the victim did not cooperate with the medical and death. At this time, no matter how nature between the intervention factors, are not the negative behavior before and after the results of the causal relationship of law.

4 factors before behavior and intervention are the facts after the reasons resulting; before the action did not achieve decisive degree, and more than the general conditions of the degree of connection. Difficult problems the existence of legal causality exists in this situation. At this time the need for specific analysis according to different legal provisions and requirements.

(1) in general, in the former acts constitute a crime under the circumstances, should be considered as the plot. (this is not in the scope of this paper.).

(2) as behavior is general error or minor violations, is not the law of cause and effect relationship between can be said of actions and results. Such as small secretly pedestrian wallet, purse and only a few dollars, purse also has no special emotional value and very expensive value, and catch the thief has stolen by negligence was hit by a car. Is not the law of cause and effect relationship between theft and stolen the thief who this case death.

(3) between the first action harm between crime and crime, the law or its legislative intent contains the need to consider the "plot" or "bad" as conviction basis, can the final results will be as serious circumstances or bad circumstances, criminal to determine the punishment of behavior, behavior people convicted of.

(4) in the first action between crime and non crime, this indirect results have been included but the law on this crime specified hazard results, can directly the result of crime seriously, make the person bear criminal responsibility for the.

(5) in the first act constitutes a crime, the final result is not consistent with the provisions of this Law on the increase, but the crime prescribed "aggravated offense by circumstances", can will finally result as "aggravating circumstances". (aggregated consequential offense in the first use of "several cases had the no A no B" formula and)

 

Three

In summary, the criminal law theory of our country can learn from the formula of "no A no B" determination of causality in criminal law. That behavior is a premise, without this premise, there would be no results, is a "no A no B" formula of judging causality in criminal law. In the behavior and the results in the other factors of the occasion, is no exception. However, special attention should be paid, are all factors in the factors of system behavior, behavior and results of intervention, and the role of behavior before the final outcome is not decisive role in more than half the necessary premise, then to make a concrete analysis of concrete problems to further study the existence of legal causation. So we to condition formula reference is a kind of sublation, absorb its judicial operation simple, conducive to the law security punishment scope does not outweigh the advantages, narrow, and overcomes the effect of equivalent conditions, the scope of punishment too wide disadvantages; at the same time, we have "no A no B" formula to solve the causality in criminal law must go through two levels: two levels of criminal law causation in fact and the criminal law causality. The two levels are mixed together, only intervening factors causing effects on results of doubt occasions, criminal law causality is special.

 

 

Reference.

[1] [2] Zhang Mingkai. Continental causality theory [A]. criminal law review second volume [C]. Beijing: Publishing House of law, 1999 edition

 [3] Zhang Shaoqian. On the causal relationship between the intervention and interrupt [J]. Journal of Zhengzhou University: Philosophy and Social Sciences, 1999.5