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因果关系的判断是刑法理论历来难解问题之一,引起了相当长时间的争论与思考。在此领域,两大法系的研究存在共通之处,即多数学者认为因果关系的判断应包括事实层面及法律层面两方面的判断,而法律层面的判断标准是主要争议之所在。然而一方面将因果关系仅定位于联结行为与结果的纽带,另一方面又不可避免的在因果关系的确定过程中掺入归责的判断,使其承担不能承受之重,造成理论与现实的脱节。客观归责理论能够在因果关系归因基础上进一步发挥归责功能,厘清了二者的定位与进阶,是解决因果关系问题的理想标准,同时为构成要件判断重心的转变,尤其是重新架构过失不法提供契机。
Judgment of causality is one of the problems that criminal law theory has always been difficult to solve, which has aroused considerable controversy and reflection. In this field, there are commonalities in the research of the two legal systems. Most scholars think that the judgment of causation should include both the de facto and the legal aspects, and the legal standards of judgment are the main issues. However, on the one hand, the causal relationship is only located on the link between the connection behavior and the result, on the other hand, inevitably, the determination of causation is incorporated into the determination of the causal relationship so that it can bear the unbearable weight, resulting in both theory and reality Out of touch. The theory of objective imputation can make the imputation function further based on the attribution of causality and clarify the orientation and advancement of the two. It is an ideal standard to solve the problem of causality and at the same time it can be used to judge the change of center of gravity for the constituent elements, Misconduct provides an opportunity.