新過失論對舊過失論的批判,基本上是對古典犯罪論體系(如條件說、心理責任論)的批判,而不是對舊過失論本身的批判。新舊過失論的重心不同,但并非對立的兩種學說。嚴格地說,舊過失論是關于過失本身的理論,而新過失論是關于過失犯的理論,應當稱為"新過失犯論"。將違反注意義務作為過失犯的特征,存在規范邏輯的錯誤;要求過失犯違反結果回避義務與要求過失犯的行為具有現實危險,沒有實質區別;而且,將違反結果回避義務作為過失犯的獨有特征,會導致過失犯的客觀不法重于故意犯,因而不當。不應當將預見可能性作為結果回避義務的前提,而應根據行為本身的危險程度及相關因素決定行為人應否采取結果回避措施;應當承認行為人對結果的預見可能性是責任要素。

The critique made by the new theory of negligence to the conventional theory of negligence is basically critique of the classic criminal theoretical system, such as the theory of but-for causation or the psychological responsibility theory. There is no critique of the conventional theory of negligence itself. The new theory of negligence has different centers of gravity from the conventional theory of negligence, but they are not opposite theories. Strictly speaking, the conventional theory of negligence is a theory regarding the concept of negligence itself; while the new theory of negligence is a theory regarding negligence offences, which shall be referred to as the new theory of negligence offences. Taking the breach of duty of care as the characteristics of negligence offences, will there bean error in normative logic; requiring the negligence criminal to violate the obligation of results-avoidance or requiring the negligent conduct to cause actual danger, will there only be difference in expression, but there is no substantive difference; moreover, taking the obligation of results-avoidance as the unique characteristics of negligence offences, will lead to the objective unlawfulness of negligent offence seven more than intentional offences, thus it is improper. It is not necessary to take the possibility of foresight as the premise of the obligation of results-avoidance, but it is necessary to judge whether the actor should take necessary measures to avoid possible results according to the degree of danger and other related factors. Furthermore, it is proper to recognize that the actor’s possibility of foresight is one of the elements of liability.