過失犯的行為不法與注意義務的功能分析

The traditional theory of negligence suggests that the norm“to avoid the occurrence of results”is a behavioral norm, meaning that the unlawfulness of an action does not require consideration of the duty of care. However, this norm only indicates the unlawfulness of the result and lacks the function of guiding behavior or protecting freedom, and thus cannot form a behavioral norm. Only by establishing the norm of a duty of care can the behavior norm of negligence be shaped. Consequently,“substantial danger”cannot replace the duty of care, nor can“legally impermissible risk”replace it, as it is not an argument but a conclusion. The unlawfulness of results is subordinate to the unlawfulness of actions. There is a distinction between the duty of care regarding the unlawfulness of actions and that regarding the unlawfulness of results. The former addresses abstract danger, while the latter concerns specific dangers and their results. The abstract danger of negligent actions, lacking punishability, does not negate their unlawfulness. The capacity for attention is merely a precondition for assessing unlawfulness, determining only whether the duty of care is invalidated, not its existence. The substantive basis for the duty of care is not the weighing of interests but the management of risk. The principle of reliance is a rule for the allocation of the duty of care, not a criterion for assessing foreseeability.