The Foundation And Status Of The Theory Of Anticipated Probability

The theory of anticipated probability takes a position of considerable significance in the criminal law theory of the continental-law countries and it is embodied in the criminal legislation and judicial practice. Because of the human nature care reflected in the theory, many experts in the criminal law circle give more concern to it. Whereas there is a good many differences between the China's theory of constitution of crime and that of the traditional continental-law, there is the problem of orientation of the theory of anticipated probability in the theoretical system of China's criminal law while transplanting it.In this thesis the author firstly introduces the essential content of the theory of anticipated probability, and then analyzes the human nature basis, the basis of the theory of responsibility and the philosophical basis of the theory. After that we emphatically discuss the status of anticipated probability in the theoretical system of China's criminal law. At last we get the conclusion that under the prerequisite of the respect for the certain popular theories in the theoretical system of China's criminal law, it is proper to place the theory of anticipated probability in the theory of criminal responsibility.The organization of this paper is as follows:In the introduction, the author briefly introduces the function of the theory of anticipated probability, i.e., it is propitious to cultivate the public's identification and adherence to laws, and the exertion of this function is achieved through the link between the criminal law of the political state and the moral norms of society.The first part is the summary of anticipated probability.At first, the thesis introduces the Confucius' exploration of benevolence, namely "what yourself do not desire do not impose on others." These may be the earliest expressions of the thought of anticipate probability. Later the thesis introduces the three Chinese ancient legal institutions which reflect the thought of anticipated probability. Consequently the thesis introduces classical expressions about the theory of anticipated probability, which illuminate the necessity of the research on the theory of anticipated probability.In the second part, the author mainly deals with the foundation of the theory of anticipated probability. At first, the thesis illuminates the humanity foundation. The most important of it is the thought of toleration and concealment on the basis of natural affection as well as the thought of self-defense on the basis of conflict of interest. So the theory of anticipated probability was put forward for the care of the human nature hereabove.Later the study discusses the theoretical basis of responsibility of the theory of anticipated probability, i.e., the regulated responsibility. It is safe to say that the theory of anticipated probability originates with the proposing of the doctrine of regulated responsibility, which has the advantages that the former theories of responsibility do not have. According to the theory, the entity of responsibility is no longer the mental links between the subject and his acts; Instead, it is the "rebuke probability" of regulations to the illegal activities based on the mental links. The warrant of responsibilities lies in the fact that there is the forbidden of trying to carry out crimes in the criminal law, however, the actor generates the decision to carry out crimes. Nevertheless only the decision of violation of the regulations (violation of the obligation) does not lead to the responsibility. Only when the actor actually has the probability of not carrying out the crimes, i.e., the actor has the anticipated probability, however, he carries out the crime, he can be rebuked by the criminal law, and he must take the responsibilities. By this token, the actor having anticipated probability is the indispensable condition of responsibility.In the last section of this part, the author discusses the philosophical basis of anticipated probability namely that the theory of anticipated probability must take the inhibitory freedom of will as the precondition. In the beginning of this section, the author introduces the dispute on the freedom of will and then confirm that there is freedom in human will in the context of criminal jurisprudence. Although the freedom of will has not been testified in psychological medicine and psychology, the basic experience of social life and the penalty's inherent features of aggressivity and distensibility decide that the human will should only be considered to be free in social sciences especially in criminal jurisprudence. It is reasonable to say that the dominant theories of criminal law cannot come into existence without taking the freedom of will as the precondition. The theory of anticipated probability is no exception.In the third part, we mainly discuss the theoretical status of anticipated probability. Firstly, the author introduces the various viewpoints on the theoretical status of the theory of anticipated probability in German and Japanese criminal law and that in China's system of criminal law, and then evaluates them respectively.The thesis believes that in order to orientate the theory of anticipated probability in China's criminal law system, the principal problem is to clarify the nature of the theory of anticipated probability. For this problem, drawing lessons from the viewpoints of some relevant scholars, the author defines it as understandable motivation. Here the "understandable" does not refer to the "understandable" in criminal law. Instead, it refers to the "understandable" in moral or some other norms. Subsequently we hackle the legal provisions embodying the ideas of anticipated probability in our criminal law and on this basis we analyzes the conflicts between the clauses and the theories of criminal law: the ideology of anticipated probability presented in the legal article is embodied in the construction of criminal law. The thesis proposes the idea that the reason of this contrast is that the theory of anticipated probability lacks the feature of normativeness. The theory of anticipated probability has to solve the problems which cannot get a reasonable results according to the present article of criminal law.In the last part of this section, the author analyzes and compares the three kinds of possible status of the theory of anticipated probability in the theoretical system of criminal law. The theory of anticipated probability should neither be placed in the justified acts excuses nor in the proviso in aritcle13 of criminal law. The reasons are as following:In China's criminal law there are only two justified acts in criminal law which are justifiable defense and act of rescue. As for other justified acts in criminal law they are not sanctioned in due form. Furthermore the justified acts in criminal law are different from the acts lacking anticipated probability, they should not be treated in the same manner. Meanwhile the cases that the actors lack anticipated probability, i.e. the cases that the actors have the understandable motivations exclude the application of the proviso in article 13 because the definition of crime is not the concrete criterion for crimes, and by the same token, the proviso in article 13 is not the concrete criterion for being pronounced as untenable, otherwise it contradicts the principle of statutory crime and penalty of criminal law.Finally the thesis gets the conclusion that under the precondition that the constitution of crime is the only criterion of a crime, in order to define the status of the theory of anticipated probability in the theoretical system of China's criminal law, we must raise the status of the theory of criminal responsibility, enrich the content of it, make full use of its appraising enginery. The anticipated probability, i. e. the understandable motivation, should be regarded as one of the fundamental factors in the appraising of criminal responsibility. Finally the theory of anticipated probability should be classified into the category of the theory of criminal responsibility. The foundation of criminal responsibility is not the constitution of crime itself which is an abstract and statutory criminal act. Instead, it is the concrete juristic fact in accordance with the constitution of crime. The juristic fact is the combination of the real and concrete harmful act and the potential and abstract constitution of crime. Consequently the criminal responsibility is not simply composed of the constitution of crime prescribed in the clauses of law. All the relevant factors and situations such as the inner cause of criminal acts, namely, the motivation, the time and site and social environment should be considered in criminal responsibility. Furthermore, when the collateral conditions are unusual the actor has the understandable motivation meaning that he does not have the anticipated probability, the acts should be treated as the acts hereabove, and be considered in the criminal responsibility. Only if we place the theory of anticipated probability in the theory of criminal responsibility, can we solve the problem of defining the status of the theory of anticipated probability and converge it into the theoretical system of China's criminal law.