不作为因果关系的理论流变与研究进路

发布时间：2018-10-08 13:31

【摘要】：不作为因果关系因为缺乏自然因果流程参照,在认定上更加困难复杂。早期学说从自然因果论出发,诉诸构成要件外原因力说明因果关系,难以符合构成要件基本理论架构。后期学说虽然回归构成要件要素的范围,但存在着混淆行为认定和因果认定以及标准模糊等问题,最终只能采用拟制作为因果关系的方法形成准因果关系说。而在因果关系归因和归责的双重审视下,准因果关系说存在着以归因判断方法解决归责问题的逻辑难题,不作为因果关系应还原规范评价和归责判断的属性。相当因果关系说通过"相当性"标准体现归责判断,但在不纯正不作为犯情形下难以避免防果义务判断与因果归责的循环论证的问题,混淆构成要件要素层次。客观归责论通过不法风险的制造与实现的分层认定部分缓解了这一问题,但其内涵超越了因果判断的范围,实质为构成要件客观要素判断理论。客观归责论中制造法所不容风险的规则实质为行为判断标准,只能作为不作为因果归责的前规则而非因果归责本身。应倡导以实现不法风险和效力落在构成要件效力范围之内的规则为不作为因果关系的归责理论,而考虑到不作为因果关系缺乏实存因果流程的特点,也就是将其作为不作为因果关系的认定理论。
[Abstract]:Non-causality is more difficult to identify because of the lack of reference of natural causality process. Based on the theory of natural causality, the early theory of causality is difficult to conform to the basic theoretical framework of constitutive elements. Although the scope of the elements of the constitutive elements of the later theory is regressed, there are some problems such as the identification of confused behavior and causality, as well as the ambiguity of the standard. Finally, the quasi-causality theory can only be formed by using fictitious as the method of causality. Under the double examination of causality attribution and imputation, the quasi-causality theory has the logical problem of using attribution judgment to solve the imputation problem, and the omission of causality should restore the attributes of normative evaluation and imputation judgment. The theory of equivalent causality reflects the judgment of imputation through the criterion of "equivalence", but it is difficult to avoid the problem of circulatory argumentation between the judgment of duty of prevention of fruit and the attribution of causality in the case of non-pure omission, which confuses the level of essential elements of constituent elements. Objective imputation theory partly alleviates this problem by making and realizing delamination of illegal risk, but its connotation is beyond the scope of causality judgment. In objective imputation, the rules which are not allowed by manufacturing law are the criterion of behavior judgment, and can only be regarded as the former rules of causality imputation and not the causality imputation itself. The theory of imputation of omission causality should be advocated based on the rule that the realization of wrongful risk and validity fall within the scope of the validity of the constituent elements, taking into account the fact that the omission causality lacks the characteristics of the existence of causation process. That is to say, whether it is regarded as the theory of causation.
【作者单位】：东南大学法学院;
【基金】：中央高校基本科研费专项资金资助的东南大学优青项目(2242014R30017)
【分类号】：D914

【共引文献】