The causal relationship and the objective imputation theory in criminal law

(notes)

I The continental law system

A,Condition (also called equivalent said, Julius Glaser) (Zhang Mingkai)

Formula: if nonA→ nonB, thenA,BThe causal relationship between the.

Content:1 To play all the conditions for the role of results it was unable to determine the cause, the difference between the conditions and causes.

     2 All the conditions are the same reason, the evaluation in the criminal law should be equal.

Defect:1 The logical contradiction. There is danger logically circular arguments.

2 "Suspicion thinking exclusion method". People must already know what conditions cause how,Know how those conditions play a role as a reason,Otherwise,Condition theory can not operate.

3 The causal relationship between the wide range,In relation to the endless.

4 Without considering intervening factors.

 

Two, why say

Meaning: for the condition and reason of area alone, with conditions as the basis, claims from each condition caused by the results, determine a for results occurred with special relationship conditions as the reason, only acknowledge the existence of a causal relationship between the results and the rest of the condition, is the only condition, no causal relationship with results between.

1 The necessary conditions

2 Advantages said

3 The last condition

4 The most powerful conditions

5 Dynamic conditions

6 Abnormal condition

7 The first condition

    Defect: not only in theory a clear distinction between causes and conditions, and the science of criminal law is not able to have any value thinking as its standard without any criticism would be applicable.

 

Three, the relative theory of causation

Claims: according to the social common people life experience.

Theory:1 Objective: all the facts advocated behavior based on causal judgments (the majority of people support the theory).

2 Subjective: should be to conduct in the behavior was recognized fact standard.

3 The compromise: fact or action advocated behavior generally expect special knowledge of the facts as the basis,Determine the equivalent with and without.

Evaluation: the subjective and the subjective understanding and recognizing the possibility of individual behavior as the considerable data, and the crime theory system on the subjective elements (intentional criminal case) or the factors of liability (negligence case) confused.

 

Defect:1Not precise,Because in practice are often unable to determine what is "the general experience".

                    2 It Limited,It is because it is impossible for those who understand the specific situation and the implementation of intentional crime situation. (causal non type)

 

          Four, legal conditions that (South Korea)

                Formula: In order to prove a behavior has causal constituent elements of the results, the results should be always in time following its behavior and the behavior of natural law associated with the mode of thinking.

                Difference. He then said the condition is not the condition that the logical or causal relationship of life experience, which means that the law of relationship recognized by the contemporary scientific knowledge.

              Content: the first stage, "to determine the causal relationship between" general. To investigate the existence of natural science on the law of cause and effect.

                        The second stage, "determine causality" concrete. Explore the specific case would be the natural science law of cause and effect the subsumtion.

              Defect:1 No play could not judge the current scientific knowledge of the case. (1960German thalidomide incident)

                   2 In determining the second stages of the causal relationship, to determine the packet perturbation in the general law of cause and effect of the specific case depends on the judge's subjective conviction. This doesn't make any difference what great theory and causal.

Five, summary:                         

    Various theories and theoretical front just identify causal existence problem, and no causal relationship has the behavior person should take the legal responsibility to make normative judgment. In other words, various theories exist only on the causal relationship, rather than the value of the causality; it is just a fact, not a value judgment and the legal standards to judge.

 

 

II The Anglo American law system(Chen Xingliang, Zhang Shaoqian, Chu Huaizhi).                                                                        

A, double level reason theory

(a) the causal relationship of fact (Factual causation)  But For

In fact it is necessary logical relation with the continental law system, the "conditions".

 

(two) the legal causation (legal causation) But For

     1 Proximate cause: for there is no exact definition of the law, even criminal work also nobody gave exact definition.

      2 The general concept of causality say (Common sense):

         1Origin: depends on the jury of traditional.

         ②Science: Criminal Law of causality, is a matter of fact, has nothing to do with the law, does not involve any value judgment factor. (Hart, Huo Nuolei)

         ③Defect:A. In the non general cases may lead to different judgments.

B. Individual legal requirements in the judgement of individual cases is often added to "policy" considerations.

    3 The policy:

         1Content: the defendant and others behavior whether can become the legal reasons, as a matter of policy.

         ②Defect:A.Because of the "policy" uncertainty itself, so that in practice it is difficult to accurately grasp, often differ from man to man, so can not really solve the problem.

                B."Policy" will be very difficult question the criminal causality and responsibility distinction.

    4 Preview: ("Model Penal Code" to a large extent absorb the said)

        1Science: is the subjective understanding of human behavior as the standard to screen fact causes as the statutory reasons. (Clarkson, Kai ting)

        The defects: ignore the objectivity of causality itself, with the above causality theory of subjective and made the same mistake.

5Rheological theory:(Tong Dehua is in "foreign criminal law theory" saw this concept, not yet know what it is.)

 

Two, summary:

Take the causality of criminal law in the Anglo American legal system is the double level reason theory. Not only do in fact judgment on behavior and results, and by law second levels of fact of first level limit, so as to ensure the accurate application of causality. Objective imputation this two yuan structure of causal relation and distinction of different approaches but equally satisfactory results below the line.

 

III Our country

A, causal relationship

Meaning: only when the damage behavior contains harmful results according to,And the results accord with the laws,Between the behavior and result is the inevitable causal relation,And only this causal relationship,It is the causation in criminal law.

Defect: 1 Behavior exists according to the judgment result, this conclusion is extremely difficult,Lack of practical value,It is difficult in the behavior in the first to find things in accordance with the development and accordingly finds necessity result during the process of judicial activities.

         2 Unduly limit the scope of causality,The scope and must not correctly define the criminal responsibility.

 

Two, the accidental causality said

Meaning: when the act itself does not contain harmful results according to,But in the development process,Occasionally in the other factors,According to the rules of factors involved in causing results occurred,Is the accidental causality between harmful behavior and results,To intervene between the factors and the result is inevitable causal relationship.

 

Three, summary:

Research on the criminal causality in China because of the influence of Marx's philosophy, always in the causal relationship and occasionally become entangled in a causal relationship. In fact, the object of criminal law of causality and the research object of philosophy are obviously different. The former is not the concern of a behavior and the relation between the result of whether the rules, whether the universality, it can solve the case in judicial practice. Specifically, need not to need to be generated against the results of the responsibility to the behavior of people, depending on the objective aspect in the behavior of the resulting in the role of no and size, but not in this role is "inevitable" or "accidental", "internal" and "external", "with the rule" or "the rules are not". Therefore, our country criminal causality research to have further development must jump out of the trap.

 

 

IV The objective imputation theory(Germany, Switzerland, Austria, Japan, South Korea and other countries and Taiwan of China) (Tong Dehua)

One, overview

Name.Objektive Zurechnung, objektive imputation

The objective imputation theory, the objective imputation theory ("illegal is objective, responsibility is subjective, objective attribution theory") (Xing Liang Chen).

Meaning: only when the risk behaviors of the protected object of behavior,And in accordance with the dangerous elements of the results is achieved,Caused by human behavior results may have the objective imputation problems.

Material: according to the criminal law needs,Established to limit the scope of causality. The objective imputation does not mean imputation based only on is objective, but mean imputation according to not only subjective. The criminal justice, to determine whether the act with responsibility, not only depends on the subjective is illegal cognition and the will, but also depends on the specific implementation of the domination of criminal intent objectively, whether the behavior object created a dangerous not allowed.

Difference.

1Constraints both from different angles. The former is to protect the objective standard limited liability conditions,To protect the objective standard for determining the original criminal legislation,Abstract. But,Dangerous to behavior escape tolerance degree,The specific criteria of. The latter "considerable" judge the general requirements for the social rules of thumb,But the social rules of thumb usually depends on the judge's ruling,Therefore randomness,This is also the causal relationship has been unable to overcome obstacles.

2Define different levels of. The former not only clear evaluation of legal norms,As a logic level analysis. The latter will evaluate the legal norms are mixed in the complex social, psychological factors, causal relationship.

3Different theoretical function. The former for the analysis of dangerous crime, involuntary crime and attempted crime without theoretical significance of.

 

Two, theory

1Germany (Luo KexinRoxin)

The act created a dangerous not allowed on the behavior of the object.

The second,The danger in reality to achieve concrete results.

This results in the scope of the constitution.

2Japan (Yamanaka Keiichi)

The relation of condition. This is the basis for the existence of the objective imputation theory.

The dangerous Manufacturing Association,Is the existence of a causal relationship between the premise,From the point of the behavior risk seeking behavior,Prior to the judgment.

③ risk association,Is the risk investigation was created to achieve results,Belongs to the post judgment,Which also includes a protective purpose norm.

 3The Republic of Korea( Jin Rixiu, Xu Fuhe)

      A permit by the danger of the law (the objective imputation general scale).

      Implementation of risk were at the (objective imputation special scale).

      Objective the protection standard.

 

4Taiwan

(1) risk, the main content of the objective imputation theory is not allowed to achieve risk is not allowed and the scope of the Constitution(Xu Yuxiu).

(2) happens and is between behavior is the result of a condition, the behavior and the result is the realization of the risk are not allowed the actor creates laws(Huang Rongjian).

(3) between behavior and result relation, behavior and result of social experience of considerable(The possibility of prediction)And the results of happen due to human behavior to risk law does not allow of(Su Junxiong).

 

5Summary:

Although different countries and regions for the objective imputation theory in expression or different in judging the level, but their theories are the same, namely increased risk protection theory and normative theory.

 

Three, the objective imputation hindered:

1Can not be regarded as the law does not allow a behavior risk:

    The principle of permissible danger

    The risk reduction principle

    The principle of the risk society and slight

    The hypothesis of causality 

    ⑤ constitute objective control principle elements of impossibility results

2Intentional behavior in the protection objective elements specification limits:

The participation of others since the crisis deliberately (self risk behavior and self responsible)

         ②Agree with the risk caused by others.

The responsible area belongs to someone else(Third scope, responsibility to others responsibility assignment).

     3For negligence, due to breach of duty of care results found even perform the duty of care will have the same results in enough.

 

Four, evaluation

1Advantage.

The objective imputation theory one's own knack in, not to prove the result liability is the understanding and the will and behavior of independent, but it provides when behavior have what condition, the responsibility not to recognize and act of will for the judgment rule transfer. (causality theory of subjective and eclecticism and foresight of Anglo American law system exists the problem is overcome.)

The objective imputation theory overcomes the thought deviation potential causal theory of,The work in the field from seeking a causal link to seek the imputation of original track,The need for evaluation of criminal law in fact assessment and regulate binding,On one hand it can be better to limit the scope of the objective imputation. (the causal relationship theory and unity relations said there was no question of value judgment.) On the other hand, such as not as occasion,Can avoid the lack of causal relationship based on the natural science theory,To punish according to provide necessary and sufficient.

 

2Defect:

1The objective imputation theory will conduct formal concept,Bring the unreasonable place. In the theory of objective imputation,The low risk of bodily action,Is to implement the behavior,But the cause for this behavior results without liability.

②The objective imputation theory trying to weaken or even eliminate the influence of causal relationship theory,The causal relationship is purely natural relationship,Rather than substantive, social significance, standard connection,So will draw the omission may have no causal relationship,But the objective imputation conclusion can.

The objective imputation theory to give up on a judgment between behavior and harmful consequences.

 

 

V Summary

As Maris Crimont said "the causality in criminal law is a general concept. There is no way to find can be widely applicable to all cases in law, and used to predict the results of principle." Whether it is civil law of objective imputation theory, or double level reason of the Anglo American law system theory are not used in the judicial practice of the complex in the. But we cannot because of its lack of use and do not think it is not reasonable. Perhaps really like Taiwan scholar Zhang Liqing said "the theory of objective imputation is only to provide us another way of thinking about the question of causality for,...... Maybe some day in the future it will be like that,Become history." We also should not because a thing tomorrow will surely perish, and ignore its in today's value. Pester excessively in the study of China's criminal law causal relation and contingent causality only learning and introducing western advanced research on criminal law theory in order to achieve a breakthrough. As for the specific reference to double level reason of the Anglo American law system and continental law system on learning objective imputation theory, accord with the object which involves the whole system of the criminal law of our country with the introduction of the.

 

 

VI Appendix

A causal relationship, becomes the problem of the case group

1 Double or an alternative causal relationship

AIn the beverage,BIn bread into a lethal dose of poison to their,CTake the two kinds of food and death.

2 Accumulated or overlapping causality

 AIn bread,BIn the beverage independently placed below a lethal dose of poison,CBecause at the same time, eat two

Food causing the overall amount of lethal dose of leadCIn the case of death.

3Hypothesis of causality

 AIn theOFlying shotO. But the plane after the ground a few minutes for the crash cause all the crew died. Even ifONot beAKilling, Certainly because of the crash accident death in a few minutes.

    (1The causal relationship between transcendence)

         Executioner is executed in the press the gallows button of the moment, to be the victim's mother for revenge the first initiative to press the button causes the death of death.

        (2The causal relationship between competing)

            AIn the OfficeOCall to the outside and shotOBut even if not,OAlso because of willBPre arranged time bomb in the office and at the same point in the case of death.

   5Cut off the causal relationship

    AMakeOTake the poison gradually takes effect, but in effect before theBShotO.

6Interrupt causality

Due to the prisonerAAttacks and hospital treatment of injured victimsBIn the treatment of refuse blood transfusions, or beCThe killing of the situation.

7Atypical causality

ATo killOThe intent of shooting, butOOnly minor injuries, however becauseOIs the death of patients with hemophilia.

  

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(1Zhang Mingkai ") foreign criminal law outline" Tsinghua University press D914.01H98 (1) (Arts Library)

(2"Crime theory") Ma Kechang: Wuhan University press  D917H9  (Arts Library)

(3Tong Dehua ") foreign criminal law theory of" Peking University press D914.04/H76  (Law School)

(4"Zhang Shaoqian") of causality in criminal law Chinese procuratorial press D914.01/H69  (Arts Library)

(5)Liu Zhiwei Zhou Guoliang.Causality in criminal law special finishing" D924.04  (Law school,Liberal Arts Library)

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