國內通說將因果歷程偏離當作構成要件錯誤的一種類型。認為因果歷程作為故意認識的對象；並且對於因果歷程重要部分沒有認識，則阻卻故意。德國實務所提出的重要性理論（相當性概念與其他正當化評價事由之欠缺）是建立起國內通說看法的主因。不過，近年德國學界普遍對這種說法提出質疑，認為因果歷程偏離不再是「心理事實」的問題，而是「規範評價」的問題。因而從過去的錯誤理論漸漸轉向歸責理論。對於因果歷程偏離的難題也從「故意」範疇轉向「故意歸責」的範疇。在故意歸責層次下，德國學界提出幾種具體的處理方式，但都不脫離傳統部分主客觀對應的看法。本文認為透過檢驗行為人主觀與客觀事實間是否一致（或者部分一致），無助於解決因果歷程偏離的難題。結論上，本文提出一個嶄新的想法—「獨立評價說」，期待能適當且方便的解決因果歷程偏離的問題。 / The general opinion in Taiwan’s academia considers the error of causal course as an error occurred in the composing elements of a crime. The academia is also of the opinion that the intent of crime shall include the essential parts of the causal course. If any such part is left out of account, the intent of crime shall also be excluded. The theory of essentiality (Theorie der Wesentlichkeit) brought forward by the German court is the main fundation for the opinion of Taiwan’s academia. German authors have questioned this theory in the recent years. They hold that the problem of deviation of causal course is rather a problem of norm assessment rather than a problem of psychological facts. Thus the past fallacy has been gradually replaced by the theory of attribution of intention, and the research on deviation of causal course which was undertaken under the category of intention has also been changed to the category of attribution of intention. As regards the attribution of intention, the German authors have developed some specific approaches to solve the error of the chain of causation. Nevertheless, these resolutions are much the same, for they all emphasize a partial coincidence between the intent and the real causal course. As a conclusion, the author claims that the coincidence can't solve the problem of deviation of causal course, and proposes a new theory, - the theory of independent assessment, with the hope of facilitating the research of the problem of deviation of causal course.
| Identifer | oai:union.ndltd.org:CHENGCHI/G0946510401 |
| Creators | 戚本律, Chi, Pen Lu |
| Publisher | 國立政治大學 |
| Source Sets | National Chengchi University Libraries |
| Language | 中文 |
| Detected Language | English |
| Type | text |
| Rights | Copyright © nccu library on behalf of the copyright holders |
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