| 注意规范保护目的与交通过失犯的成立 |
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| 引用本文： | 刘艳红.注意规范保护目的与交通过失犯的成立[J].法学研究,2010(4):133-148. |
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| 作者姓名： | 刘艳红 |
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| 作者单位： | 东南大学法学院 |
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| 摘 要： | 交通过失犯的本质应是结果回避义务，判断该义务之有无应以预见因果关系为内容的结果预见可能性为前提；注意规范保护目的是判断此种因果关系成立与否的理论，只有当行为人违反了注意规范保护目的而致损害法益结果发生时才能成立交通过失犯。注意规范保护目的是以作为刑法规范下位规则的交通法规为基础的可普遍适用于交通过失犯的判断标准，它属于交通过失犯中的违法要素，使用它无须通过客观归责理论。注意规范保护目的理论能合理限定交通过失犯的成立范围，有效克服我国司法实践中普遍存在的以交通事故责任书直接作为刑法上交通过失犯成立依据的不妥做法。
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| 关 键 词： | 交通过失犯 结果回避义务 注意规范保护目的 结果预见可能性 |
Protective Scope of Rule and Establishment of Negligent Traffic Crime |
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| Liu Yanhong.Protective Scope of Rule and Establishment of Negligent Traffic Crime[J].Chinese Journal of Law,2010(4):133-148. |
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| Authors: | Liu Yanhong |
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| Abstract: | Negligent traffic crime refers to the crime conducted by persons with foreseeing capacity who breach the duty of care and infringe the legal interest during transportation. According to the new theory of negligence, the essence of negligent traffic crime is the duty of result avoidance. Whether the duty of result avoidance is violated or not relies on whether there is causation between the conduct and result of the traffic accident. That is how the concept of the protective scope of rule gets into our view. According to the old theory of negligence, whether causal process complies with the protective scope or not is a problem related to the possibility of factual result avoidance. While pursuant to the new theory however, it should be considered as an issue with regard to whether there is a duty of result avoidance or an increasing danger, which are determined by the possibility of normative result avoidance. By analyzing the mechanism of result foreseeing possibility, the principle of criminal responsibility, and burden of proof in negligent traffic crime cases, it can be concluded that the new theory should be adopted.The protective scope of rule as we discuss here includes not only criminal law and its duty of care but also traffic regulations and their duty of care. Traffic regulations are the sub-laws and the basis of duty of care in criminal law. The theory of the protective scope of rule does not need to be used under the objective imputation theory, because it relates to the problem of whether the development of causal process in negligent traffic crime complies with legal order. It is not an element of liability, but an element of illegality. For its judiciary application, the theory of the protective scope of rule must be applied case by case and the protective purpose of both criminal law and traffic regulations should be taken into account. In Chinese criminal theory, it is unclear whether the essence of negligent traffic crime is the duty of result foreseeing or the duty of result avoidance, which has resulted in expanded conviction of negligent traffic crime in practice by directly relying on the administrative decisions about responsibilities for traffic accidents without considering the criminal essence from legal perspectives. This negative reality can be changed with the theory of the protective scope of rule in which the conviction of negligent traffic crime relies on the analysis of causal relation. |
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| Keywords: | negligent traffic crime duty of result avoidance protective scope of the rule possibility of foreseeing the result |
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