因果关系错误问题及其应对——以行为危险现实化说的再阐释为中心

因果关系错误,是为了解决在因果关系上认定过宽,让行为人对一些罕见的偶然结果也要承担既遂责任的问题而提出的概念,是试图将在客观违法阶段难以解决的问题转移至主观责任阶段加以解决的尝试。但这种尝试不仅无法解决具体问题,还会加重责任阶层判断的负担,导致违法阶层判断与责任阶层判断失衡。因此,在客观层面处理因果关系错误问题成为学说主流,其中,行为危险现实化说应当成为首选方案。只是,当前对行为危险现实化说的理解带有较浓厚的相当因果关系论色彩。行为危险现实化说强调因果关系的客观性,认为在有无因果关系的判断上,没有必要以内容模糊的规范性因素即“异常性”作为判断依据,而只要以科学鉴定所确认的行为对现实结果发生的贡献度或者参与度为根据,判断现实结果能否评价为行为危险的现实化即可。

On the Problem of Causal Errors and Its Countermeasures

The existing theory on causality in criminal law is too broad in scope and, as a result, an actor may incur the responsibility of accomplished crime for some rare accidental results. The concept of error of causality attempts to deal with this phenomenon by shifting the problem which is difficult to solve at the objective illegal stage to the subjective responsibility stage. However, this kind of attempt not only fails to solve the problem that causality is wrongly identified and the special conditions of the victim become the main cause of the result, but also adds to the burden of liability judgment, resulting in the imbalance between judgment of illegality and judgment of responsibility. Therefore, dealing with the phenomenon of causality error at the objective level has become the mainstream method in various theories, among which the theory of realization of behavioral danger, which is similar in nature to the theory of objective attribution, becomes the first choice. However, the current doctrine of realization of behavioral danger has a strong flavor of causality and needs to be revised. Since the purpose of criminal causality is to limit the scope of punishment and the doctrine of realization of behavioral danger emphasizes the objectivity of the judgment of causality in criminal law, there is no need to take “abnormality”-a normative factor that can easily lead to subjectivism in the judgment of causality-as the basis for judgment. The degree of contribution or participation of an act confirmed by the judicial appraisal made on the basis of scientific knowledge and means is the sufficient basis for judging whether the realistic result can be evaluated as the realization of behavioral danger.