The Standardized Application Of The Theory About Alternative Behavior In Compliance With Obligations

The theory about alternative behavior in compliance with obligations is an important component of the theory of liability fixation for negligent offenders.It is necessary and feasible to confirm the possibility of avoiding consequences for negligent offenders in our judicial practice.The determination about the possibility of avoiding consequences should be carried out from two categories:the behavioral level and the causal relationship level.At the same time,the possibility of avoiding consequences within the same level can be divided into two dimensions:factual meaning and normative meaning.The object of the theory about alternative behavior in compliance with obligations is the possibility of avoiding normative consequences at the behavioral level,that is,whether the behaviour which violates the duty of care has created the risk that is prohibited by criminal law,and whether there is a normative relationship between the breach of obligation and the harmful consequences.At present,in Chinese judicial practice,the determination about the possibility of avoiding consequences for negligent acts mostly focuses on the factual dimension,lacking the investigation of the possibility of avoiding consequences in the normative sense.Therefore,it is necessary and perhaps feasible to apply the theory about alternative behavior in compliance with obligations.Regarding the application of the theory about alternative behavior in compliance with obligations,there are following issues need to be noted:First,we should pay attention to the selection of alternative behaviors.The alternative behaviors need to meet the criteria that the risks created by alternative behaviour can be permitted by criminal law,so that it is able to equate the change in the likelihood of harmful consequences,contained in a breach of obligation compared to a substitute for the same obligation,with the prohibited risk created by the breach of obligation.According to this criteria,the selection of alternative acts cannot be only based on the fulfillment of the duty of care prescribed by general law,but rather based on the degree of fulfillment of the duty of care that can basically avoid the occurrence of specific harmful consequences.Second,we should pay attention to the object of comparison.The comparative object of the hypothetical method about alternative behavior should be the possibility of the occurrence about specific harmful consequences,which are directly caused by the behavior which violates the duty of care.In different situations,it is necessary to classify the compared objects of the hypothesis methods.In situations where there is only a single breach of obligation,the comparative object can be equivalent to the ultimately happened harmful result.However,in situations where there are more than two breaches of obligation,the object of comparison is not the final harmful result,but the harmful result directly caused by each breach of obligation.Third,we should pay attention to the limitation of standards for determining whether the behaviour violates the duty of care has created the risk prohibited by criminal law.Among the two standards of" being confident that it can be avoided "and" increased risk",the " increased risk " standard should be selected as the criteria for determination.The criteria of" being confident that it can be avoided "is the result of improper application about control variable method which belongs to the natural science field.It does not take into account that other risk factors may change with the replacement of compliant behaviors,and it cannot meet the needs of general prevention in the current risky society,so it should not be applied.However,it is still necessary to make certain restrictions on the "increased risk"standard,otherwise it will violate the principle that the criminal law can only be applied as the last regulatory means.On the one hand,there should be restrictions on the extent of increased risk.Only when the breach of obligation significantly increases the likelihood of harmful consequences compared to the substitution of obligations can the possibility of avoiding consequences in the normative sense be confirmed.On the other hand,there should be restrictions on the applicable types of the theory about alternative behavior.The theory can only be applied in those types that contain relatively stable risk factors in fact.According to the nature of risk factors,additional risk factors in facts can be divided into the following types:intrinsic type of things,constant type of other behaviors,natural accident type,self created type of victims,and multi created type of actors.Among them,only the behaviors contain the first three risk types can be directly applied to the theory of alternative behavior to confirm the possibility of avoiding the consequences in the normative perspective.The types of behavior that include victims’ self created risks need to transform the way of thinking about liability attribution,focusing on the normative evaluation of implement about prohibited risk rather than the creation about prohibited risk.What needs special analysis is the specific application process of the theory about alternative behavior in the situation that exists more than two negligent behaviors.In this situation,since the normative connection with a particular breach of obligation is not necessarily the ultimate harmful result,it is necessary to adopt a more explicit approach to confirm whether the specific negligent behavior has the necessity to apply the hypothetical method.In this regard,a "two-step" practical judgment path can be adopted:for the first step,determine whether the degree of violation of the obligation has reached the level that can be believed to cause harmful results;and for the second step,determine whether the provisions of the duty of care are complete and clear.Only by affirming the possibility of the existence of risks permitted by criminal law,it is necessary to adopt the theory of alternative behavior to conduct a normative investigation of the possibility of avoiding the consequences related to a specific breach of obligation.