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CAI Guisheng: The Irregular Causations and the Critics against the Objective Imputation

Abstract: According to the theory of objective imputation, the irregular causations should be precluded through the objective criterion of ¡°permitted risk¡±. The criterion of ¡°permitted risk¡± has preinstalled a perspective of a fictive ¡°objective-standard person¡±. Therefore, in the criminal theory that the judge should first carry out a step of objective imputation, and then that of subjective imputation, the first step is unnecessary. In the case that the perpetrator realizes his special knowledge, the theory of objective imputation can lead to a wrong conclusion. With the introduction of the so-called ¡°special knowledge¡± into the theory of objective imputation, this imputation will be not objective any longer. It is not suitable to adopt the theory of objective imputation, which is based on a ¡°fictive person¡±. The proper way is to understand and interpret the legal elements, such as result, action and intent (or negligence), normatively and basing on all the facts that expost found out. The imputation of criminal results is a subjective imputation that aims at the real perpetrator rather than an objective imputation towards a ¡°fictive person¡±.

Key words: Irregular Causation; Objective Imputation; Special Knowledge; Normalization of Elements; Subjective Imputation

(Editor: ZHANG Wenke)

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