从客观归因到主观归责
冯亚东,李侠从客观归因到主观归责
From Objective Attribution to Subjective Imputation
期刊名称：《法学研究》
期刊年份：
作者：冯亚东,李侠
单位：西南财经大学法学院;;四川大学法学院;西南财经大学法学院
中文关键词：因果关系;体系分析;客观归因;主观归责
英文关键词：causation;objective attribution;subjective imputation
中文摘要：
在中国现行刑法的明文规定和犯罪构成四要件的解说体系下，对因果关系及刑事责任的确定应遵循从客观归因到主观归责的分析进路。所谓客观归因，即对因果关系的判断只是确定行为人承担刑事责任的客观基础，故采用“条件说”即能以最简捷方法予以解决，不需要引入见仁见智的各式规范判断学说；至于由此而导致的责任范围过于宽泛的问题，则可以通过对主观罪过的精确界定予以解决，在主客观相统一的更高层面最终解决对行为人是否归责的问题。
英文摘要：
Causation is one of the most complicated issues in the field of criminal law. In foreign criminal law theories, causation is evaluated by referring both to factual and normative aspects. For the former, purely objective condition theory is popular and for the latter, the leading views focus on the objective evaluation of the normative rules so that the criminal responsibility can be properly imputed.Nevertheless, such reasoning adopted by the foreign theories of criminal law may not be suitable to China as different states have different legal norms and different constitutive theories of a crime. German theory on causation may be a good example in this regard. The reason why the theory emphasizes that the criminal responsibility issue should be completely determined in the factual aspects lies not only in the view of taking the criminal punishment as a consequence of “imputable responsibility” but also in the “attributable unlawfulness” which leads to security punishment and may serve to exclude the evaluation of issues such as criminal culpability and faults of criminal perpetrators. By this reasoning, some crimes may be categorized as Objective Crimes. Under the Chinese law, the criminal responsibility must be attributed to both subjective and objective aspects of the crime and the connection between the subjective and objective aspects of the crime must be established. Therefore, under China’s Four Elements Theory, the evaluation of causation may follow the reasoning of “objective cause” and “subjective responsibility”.“Objective cause” means that the evaluation of causation is merely the factual basis upon which the criminal responsibility may be determined, thus excludes the debatable arguments of various normative theories. The possibility of criminal responsibility expansion which may be incurred by the condition theory can be properly restrained or excluded by the accurate evaluation of the fault of criminal perpetrators. Thus the criminal responsibility may be correctly imputed by the evaluation of both the objective and subjective aspects of a crime in question.
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