客觀歸責還是主觀歸責？－－一條”過時”的結果歸責思路之重拾

Objective Imputation or Subjective Imputation?

客觀歸責論的兩大核心原理均有缺陷：風險的創設與實現原理不可能在客觀要件中展開，因為禁止的風險須以行為人的主觀能力為判斷根據；風險的降低與變形原理以假想的結果為參照，本質是假設因果關係的運用。要合理地確定結果責任，不應遵循客觀歸責的路徑，而應重拾主觀歸責的思路。

There is no feasibility in two core principles of the objective imputation theory. The determination of the prohibited risk must be based on the actor's subjective ability, so the principle of risk creation and realization connot be established at the objective level. The theory of risk reduction and reformation refers to hypothetical results, and the nature of the theory is the assumed causality, so it should be objected. To avoid the unreasonable expansion of result responsibility, the idea of objective imputation, as well as the old thinking of subjective imputation mehely based onfacts, should be objected. It is recommended to accept the thinking of subjective imputation based on norm, which maintains that to judge the imputation of result, the relation between the actor's subject and the result, which is based on the prohibited risk, should be established.