It is necessary to make a clear judgment on the basic position of negligent crime in order to discuss the possibility of avoiding result in negligent crime.The opposition between the new theory of negligence and the old theory of negligence tends to eliminate,the fundamental reason is that the old theory of negligence starts to emphasize the breach of result avoidance duty,and the difference between the two theories is eliminated in form.The trend of“fusion theory”should be affirmed.It is a good solution given by the theory of functionalism criminal law.Through the construction of a concise composition of negligent crime,the essence of unlawfulness of negligent crime can be expressed as: the result foreseeability and the imputable breach of result avoidance duty.

Systematic positioning and specific application are two important parts of supporting the theory of possibility of avoiding result.In terms of systematic positioning,by sorting out and reviewing the existing solutions of various representative systems,it can be concluded that: compared with the plan unitary solution,the differentiated solution is more reasonable,and compared with the single positioning,“ex-ante and ex-post theory”in the multiple positioning is more reasonable.According to this view,there is a dual positioning of the possibility of avoiding result,that is,ex-ante possibility of avoiding result and ex-post possibility of avoiding result.Among them,the ex-ante possibility of avoiding result is to discuss the fulfill possibility of result avoidance duty and fulfill necessity of result avoidance duty.The ex-post possibility of avoiding result is to discuss the normative relevance on the breach of duty or the fulfill availability of result avoidance duty.

In terms of specific application,it is necessary to focus on solving the six judicial difficulties in the problems of possibility of avoiding result,namely,the reasoning of foreseeability,the judgment of result avoidance duty,the screening of legitimate alternative behavior,the identification of same result,the selection of result avoidance criteria,and the positioning of protection purpose of the norm.The function of the theory of foreseeability should be brought into full play.Such as the relevance theory between foreseeability and result avoidance duty,and the theory of information collection duty should be applied to the reasoning of cases.Only part of the administrative regulations can be used as the judgment material for the duty of care in criminal law.As for the selection method,it should be related to the protection of legal interests and directly or indirectly lead to the results of constituent elements.The screening rule of the legitimate alternative behavior is: within the range of the foreseeability,the principle of minimizing the behavioral burden as far as possible is adopted to realize the maximum behavioral benefit of the actor.As for the identification of the same result,“specific result theory”should be adopted.The theory of increased risk has the problem of turning actual damage offense into concrete potential damage offense,but its problem consciousness deserves attention.It must be acknowledged that a weakened standard of imputation is of great significance in the settlement of practical cases.It may be more appropriate to explain the relationship between the theory of conspicuous increased risk and the theory of avoidance by means of typological thinking.It is doubtful to use the theory of protection purpose of the norm to solve the problem of possibility of avoiding result.Because the scope of protection purpose of the norm is not clear and specific,it is necessary to limit the applicable space.In addition,it is necessary for the whole theoretical solution of possibility of avoiding result to reach practical application through the process of“translation”.

Keywords:possibility of avoiding result; foreseeability; result avoidance duty; systematic thinking; theory of functionalism criminal law