在当前的主流刑法理论中，故意犯和过失犯共享相同的归责构造。但是，故意犯和“客观归责”不易兼容，过失犯和“主观归责”难以匹配，故意犯和过失犯在事实和规范层面的差异决定了二者不法结构和归责类型的分歧。刑法理论对故意犯和过失犯的归责构造应当作出区别化建构：故意犯的归责构造是规范化的意志归责，过失犯的归责构造是规范化的客观归责。故意犯的归责构造包括三个阶段：构成要件行为、未遂着手认定、既遂结果归责。故意犯的构成要件行为应以行为人主观认识到的事实为判断资料，在法规范立场上以一般经验法则判断是否具有导致法益侵害结果发生的类型性危险。故意犯的未遂着手标准是法益遭受构成要件行为造成的现实、紧迫的危险。构成要件行为具有“作为行为属性的危险”，对应于行为规范的违反；未遂着手则具备“作为结果的危险”，对应于制裁规范的发动。故意犯的结果归责原理是意志支配，即考察现实发生的法益侵害结果是否仍处于行为人意志支配的范围内。意志支配原理可应用于“与行为时已存在的事实竞合”“被害人行为介入”“第三人行为介入”等结果归责复杂场景中。过失犯的归责构造包括两个阶段：构成要件行为、既遂结果归责。过失犯的构成要件行为是违反客观注意义务且使法益遭受现实危险的行为。过失犯的注意义务应当通过法益关联性的审查，注意义务的具体化应以行为人所处领域的审慎理性人为受众、以普遍化的利益衡量为原则。过失犯的结果归责原理是风险分配，不要求结果发生于行为人意志支配的范围内，因此过失犯的结果归责范围比故意犯更宽，否定故意犯的结果归责后还可能成立过失犯的结果归责。风险分配兼具正当性（当罚性）和有效性（需罚性）两个维度，前者主要考虑行为人创设的风险之于结果的现实作用力、客观的结果避免可能性、风险处于行为人的管辖范围、被害人对风险的自愿接受程度。后者则主要考虑风险由何方主体创设或支配、何方主体具备更优越的风险避免能力、何方主体从风险中获益、并不排除多方主体共同负责的可能性。风险分配原理可应用于“与行为时已存在的事实竞合”“与被害人的过失竞合”“与第三人的过失竞合”等结果归责复杂场景中。

In the current mainstream criminal law theory, intentional crimes and negligent crimes share the same imputation structure. However, intentional crimes and "objective imputation" are inconsistent, and negligent crimes and "subjective imputation" are incompatible. The differences between intentional crimes and negligent crimes at the factual and normative levels determine the differences in their unlawful structures and types of imputation. The criminal law theory should make a differentiated construction on the imputation structure of intentional and negligent crimes: the imputation structure of intentional crimes is the normative willful imputation, and the imputation structure of negligent crimes is the normative objective imputation. The imputation structure of the intentional crime consists of three stages: the conduct, the attempt, and the imputation of the result. The conduct should be judged by the facts subjectively known by the actor, and the general rule of practice should be used to determine whether there is a type of danger that leads to the result of legal interest attack from the standpoint of legal norms. The standard of attempt for intentional crimes is the real and urgent danger to the legal interest caused by the conduct. The conduct has "danger as a property of the act", which is a "qualitative" judgment; the attempt has "danger as a result", which is a "quantitative" judgment. The principle of imputation of results for intentional crimes is domination of the will, that is, to examine whether the actual result of the attack of legal interests is still within the scope of the actor‘s will. The principle of domination of the will can be applied to "competing with the facts existing at the time of the act", "the victim‘s behavior intervenes", "the third person‘s behavior intervenes" and other complex scenarios of result imputation. The imputation structure for negligent crime consists of two stages: the conduct and the imputation of the result. The conduct of a negligent crime consists of two stages: the constituent act, and the imputation of the accomplished result. The conduct of a negligent crime is an act that violates the objective duty and exposes the legal interest to real danger. The duty of the negligent crime should be examined by the relevance of the legal interest, and the specificity of the duty should be based on the principle of generalized benefit weighing for the audience of the prudent and rational person in the field of the actor. The principle of imputation of results for negligent crimes is risk allocation, which does not require that the results occur within the scope of the actor‘s will, so the scope of imputation of results for negligent crimes is wider than that of intentional crimes, and the imputation of results for negligent crimes may be established after denying the imputation of results for intentional crimes. Risk allocation has two dimensions: legitimacy (punishability) and effectiveness (necessity of punishment). The former takes into account the realistic effect of the risk created by the actor on the result, the objective possibility of avoiding the result, the fact that the risk is within the jurisdiction of the actor, and the degree of voluntary acceptance of the risk by the victim. The latter considers who created or dominated the risk, who has the better ability to avoid the risk, who benefits from the risk, and does not exclude the possibility that multiple parties are jointly responsible. The principle of risk allocation can be applied to complex scenarios such as "competing with the facts existing at the time of the act", "competing with the negligence of the victim" and "competing with the negligence of a third person".