论过失犯中结果避免可能性的判断

在过失犯中采纳结果避免可能性理论，既有实定法依据，也能够解决实务中践行传统过失审查模式所导致的问题，保证归责范围的妥当性。要使结果避免可能性理论研究的教义学成果在实务中落地生根，必须结合实务案例确定结果避免可能性理论适用的具体操作指南。首先，合义务替代行为是最低限度的符合全部注意义务的行为。其次，应当区分风险，在假定因果流程中需要考虑的是与行为人所创设风险之实现有关的“关联风险”，而要避免的“结果”必须结合具体的时空关系进行判断。最后，应当判断是否确定能够避免结果发生，在不能确定能否避免结果发生时，应采取风险升高理论；但在避免结果发生的可能性较小时，可对行为人酌情从轻处罚。

Judgment on the Possibility of Avoiding the Result in Negligence Offences

This research reviews a large number of judgments and finds that courts in general rely primarily on empirical judgments and adopt the traditional negligence review model when handling negligence offences: where material consequences are induced, the equivalent causality theory is applied to examine objective causality relations and whether there is possibility for the actor to foresee the result. This model results in repeated reviews and absence of normative judgement. The theory of possibility of avoiding the result must be adopted to address this practical problem. The theory of possibility of avoiding the result is derived from the theory of objective imputation. It determines the scope of the constitutive behavior from the purpose of legal order. It not only has the basis of substantive law, but also ensures the appropriateness of the scope of imputation, thus can prevent the arbitrariness of imputation, which is conducive to solving practical problems. In judicial practice, the application of the theory of possibility of avoiding the result should be guided with a set of typical and representative cases. First, in the judgment of assumed causal process, the substitution behavior must be the behavior that meets all duties of care in a specific situation, and it should also be considered as the minimum compliance behavior. Second, risks should be categorized into “relevant risks” and “irrelevant risks”. In determining the assumed causal process, we should examine only “relevant risks” while excluding “irrelevant risks” created by the actor that have no influence on the realization of the risk created by the actor. In this way, it is possible to reasonably attribute criminal liabilities when multiple actors violate the duty of care, and to give proper explanation of the “results” to be avoided in the assumed causal process and within a specific temporal and spatial context. Finally, the certainty of avoiding the result should be examined. When it is not certain whether the result can be avoided, increased risk theory should be adopted. The possibility of avoiding the result does not need to be superior, and there is no need to adopt “sure to avoid theory”. If there is a possibility to avoid the result, the actor can be imputed. But when the result is less likely to be avoided, the actor can be given lighter punishment. Existing literature is limited to specific aspects of a general topic, such as the degree of avoidance of results, how to distinguish from assumed causality, etc. This research, taking practice as the guidance and Chinese judicial practice as evidence, pioneers in exploring the application of the theory of possibility of avoiding the result to negligence offences, and in proposing a systematic and comprehensive operational guideline for the application of the theory. It aims at promoting the popularization and application of the theory in the Chinese judicial practice. In fact, this article supports the “weak theory” by advocating increased risk theory, which is of great significance in promoting academic debates. In addition, there are many innovations in viewpoints and judgment methods in this article. For example, this research proposes for the first time to distinguish between “relevant risk” and “irrelevant risk” when distinguishing between the judgment of the possibility of result avoidance and the assumed causality, and the theory is examined in the context of complex negligence cases. It also puts forward an approach to determine the “result” to be avoided in the assumed causal process when judging the possibility of avoiding the result.