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Research On The Theory Of Anticipated Possibility

Posted on:2011-10-31Degree:DoctorType:Dissertation
Country:ChinaCandidate:N MaFull Text:PDF
GTID:1116360305953667Subject:Criminal Law
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The study on the theory of anticipated possibility since from the beginning of 20th century after modern criminal theory had been established. It is an important theory of continental law system and important composition of normative liability. There was not anticipated possibility ever in our country. This is up to our crime establishment system. Firstly, the concept of criminal liability is different between our country and continental law system. Criminal liability means the result criminal offence in china and has not substance in our country. But continental law system, criminal liability is not only the result of crime but also a process to judge. Therefore anticipated possibility which the important factor of liability judge can not be acknowledge in our country. Secondly, our crime establishment system is a description of crime law. It attaches importance to incriminating, but think little of absolution.A lot of scholars begin to pay close attention to the theory of anticipated possibility which belong to continental law system in recent years. They think should introduce the theory of anticipated possibility into our country. They recognize anticipated possibility attach to the trend of criminal development. It also is in accord with our legal tradition. But, if we want to attach this purpose, we should prepare three works. First, we must clearly know the concept function and status of anticipated possibility. We also could know the essence of anticipated possibility through these discuss. We need historical inspection and systematic inspection on study of anticipated possibility to find out its relative merits. Second, it is the inspection to our crime establishment system. We should find out the best scheme for introduce anticipated possibility base on the crime constitution system of our country. Third, we should investigate the influence of anticipated possibility to the criminal system of our country after the introduction. To introduce an institution is not a simple thing, but a thing that will have a series of influence to our crime constitution system. The introduction of anticipated possibility also can not be an exception. So we should pay attention to the influence anticipated possibility made after study on the introduction. These influences include a lot of aspects, for example to basic theories crime establishment system enactment of criminal law and criminal justice. The three contents what is said above is organic component of the introduction of anticipated possibility. It also is the basic framework of this paper. The present thesis is divided into six parts.The first part is foreshadowing to the discussion on the basis of anticipated possibility. The major is to have a retrospective analysis on anticipated possibility. Then take a brief introduction about influence of anticipated possibility on criminal law theory in current countries in the world. Through the study of history, we find the relationship between anticipated possibility and norms liability is not as close as the original understanding, anticipated possibility is relatively independent. This conclusion gives one hint to us that we should to pay attention to the study on anticipated possibility itself, but not the norms liability.The second part is a study on the basis of anticipated possibility. First of all, this thesis through the analysis of the current concept about anticipated possibility to reach a conclusion that there are three means of anticipated possibility: the spirit of anticipated possibility the theory of anticipated possibility and the system of anticipated possibility. On this basis, the anticipated possibility in broad sense includes all characteristics of it. It is not a highly abstract idea, nor is the hypothesis that has no conclusion, but one theoretical issue can discuss in criminal law. And the anticipated possibility in narrow sense is about the formal features practice of it. Secondly, through the analysis of the theory background to reach a conclusion that it is very reasonable. In philosophy, relative freedom of volition is the theoretical basis of anticipated possibility, and admission to the influence of the impersonality condition on the freedom of volition is the premises of anticipated possibility. In ethnics, the human nature and humanism present the ethical basis of anticipated possibility, from which the rationality of anticipated possibility is originated. In jurisprudence, the justice and statute's effect make the anticipated possibility rationalized. Third, through the analysis of the function of anticipated possibility to reach a conclusion that it has two important functions: one is to smooth the contradiction of crime constitution system, the other one is to reduce or exempt from criminal responsibility.The third part mainly discuss about the necessity and feasibility of the anticipated possibility introduction. Because anticipated possibility can compensates for the deficiency of our crime constitution system, so the introduction is necessary. Because the introduce problems can be solved by prefect introduce plan, so the introduction is possible. However, there will be many difficulties on theory and practice of introduction in our country. So the last issue in this chapter is the difficult of introduction analysis. This paper considers that the theoretical or practical difficulties both can overcome by an available introduction program. Therefore, the anticipated possibility introduction is feasible. And for the anticipated possibility is profound and complicated theory, so its introduction will have far-reaching effects to our country in theory and practice of criminal law.The fourth part focuses on the introduction program of anticipated possibility. The program is the key to success for the introduction. This chapter first introduces the current introduction programs in our country which can be divided into positive and negative. Each program has its merits and drawbacks, but the author argues that the negative element program should be better. However, the current negative approach is not suitable and it should be made appropriate adjustments. This thesis believes that the anticipated possibility should be regarded as an independent reason for elimination of criminality. Firstly, this view coheres with the independence character of anticipated possibility that had been proved in above paragraphs. Secondly, the functions and values of anticipated possibility can be work in this view and it will not undermine our existing crime theory system. Although there could be some shortcomings with this program, but it is the most economical and most feasible solution with least resistance.The fifth part is mainly based on the introduction program of the negative elements to explore its impact after introduction. First of all, the introduction of anticipated possibility will affect the crime establishment system. Put anticipated possibility into ground for elimination of criminality would enrich its content so that it can keep pace with the constitution of crime to form the negative and positive two-tier criminal system. Second, because anticipated possibility is a new kind of reason for elimination of criminality, so it is necessary to analysis its statue in it and prove the double-level structure is reasonable once again. The anticipated possibility is not an explained principle, but an independent reason for elimination of criminality. Finally, this thesis makes tentative plan of legislation and justice on anticipated possibility. The author argues that legislation on anticipated possibility will come true. But it would go through three steps: the first step is introduction and recognition of this theory; the second step is partly recognized in the legislation; the third step is completely recognized in the legislation based on the cases accumulation. The anticipated possibility should be used in intentional and unintentional crime. Judicial control is very important for anticipated possibility. The controlling in court is by relative non-prosecution system. The control in procuratorial organ is by the system of case report and case guided.The sixth part has two sections which discuss two issues close with anticipated possibility: standard and mistake of anticipated possibility. The judgment standard of anticipated possibility belongs to basic theory of anticipated possibility and is about to the justice of it. It is also the issue which has an interminable argument and scholars have not agreed on. This excessive argument makes the anticipated possibility fall down actually. It is not right. So I suggest ending this argument with a pragmatic approach. We can use a positive method instead of the clear view. After comment on the views of judgment standard, this paper argues that the middle point is better. As other cognitional errors in law, the cognitional error in anticipated possibility also has two kinds of it: factor error and error of illegality. We should give case deal.
Keywords/Search Tags:Anticipated Possibility, Crime Establishment System, Constitution of Crime, Criminal Responsibility, Ground for Elimination of Criminality
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