On The Theory Of Anticipated Possibility

The Anticipated Possibility is a very important criminal theory in Civil Law, which has attracted interest from the theoretical circle in China in recent years. A number of academic papers are issued and some books are published. However, the research on such theory is a little superficial and lacking depth in general because it does not study the thought of anticipated possibility reflected in historical culture, especially legal cultureof ancient China; it does not conduct deep research on the foundation of the theory of anticipated possibility but goes into the surface and talks in generalities; it does not combine anticipated possibility and the practice of legislation and judicial situation in China resulting in inapt and insufficient exposition of reference of such theory for criminal legislation and justice in China. This dissertation tries to do some initiative work by making panoramic analysis of the anticipated theory from the historical and practical perspectives, which is not limited to discussion of the theory itself, but also thorough exploration of its sources in China and foreign countries, demonstration in details of its foundation from philosophical, ethical and legal perspectives, as well as in-depth analysis of its reference for criminal theory, legislation and justice in China. The whole dissertation consists of introduction, body and conclusion totally in 167500 words, in which, the body is divided into seven chapters.Chapter one "Thought and Legal Sources of Anticipated Possibility in Ancient China" consists of three sections. Section one demonstrate the meeting point between Confucian philosophy and the thought of Anticipated Possibility. This section gives an brief introduction of the thought of Confucion Humane and Mean and proves agreements between Confucian philosophy and the thought of Anticipated Possibility. As to Humane, the idea of loving advocated by Confucian tallies with spirit of humanitarianism reflected in the thought of Anticipated Possibility; the thought of Confucian forgiveness is somehow similar to the thought of Anticipated Possibility; the thought of Confucian reasons for offence and cautious punishment has a meeting point with the thought of Anticipated Possibility. As to Mean, the logos of fullness, moderateness, harmony and implementing law according to circumstance are all corresponding to thought of Anticipated Possibility. Section Two demonstrates the meeting point between Confucian legal methodology and the thought of Anticipated Possibility from the perspective of deciding a legal case according to Confucianism. Section three expounds the specific meeting point between the detailed system of Confucian ethical law and the thought of Anticipated Possibility mainly in two aspects, i.e. the system refusing to testify against family member, sympathy and tolerance on revenge.Chapter Two "Formation and Development of Anticipated Possibility Theory and System in Western Countries" is divided into two sections. Section One mainly introduces the formation and development of anticipated possibility theory and system in Civil Law; Section Two elaborates the thought of anticipated possibility in legal theory and system of common law countries. Although the theory of anticipated possibility is originated from civil law countries and there is no such straight-forward theory in common law countries, it exists and is reflected in criminal legislation, justice and theory. This section explores it.Chapter Three "Foundation of Anticipated Possibility" consists of three sections. Section One demonstrates philosophical foundation of Anticipated Possibility from the perspective of free will. This section points out by expounding the philosophical free will, will-determinism and relative free will that will is not totally free or determined but relatively free and the relative free will is exactly the philosophical foundation of anticipated possibility. Section Two proves the ethical foundation of anticipated possibilities from the perspective of human nature. This section firstly expounds the connotation of human nature and points out that the basic instinct of human nature is pursuing good fortune, avoiding disaster and self-protection. And then it demonstrates the importance of care for human nature imposed by criminal law and points out that the care for human nature is the reflection of justice and humane character of criminal law which forms the basis of effectiveness of criminal law. Finally it discusses how to care for human nature in criminal law and points out that it shall base on individual rather than society in the relationship between individual and society. The criminal law shall focus on individualism of philosophy because the actor choosing self-protection in a ethical conflict and dilemma to sacrifice other's or social interests does not break humane principle, the criminal law shall offer some compassion and understanding. Section Three demonstrates the legal foundation of anticipated possibility from the perspective of caution and tolerance of criminal law. Chapter Four "Judgment on Weakened and Lost Anticipated Possibility" is divided into three sections. Section One elaborates the requirement of existing anticipated possibility. In two aspects, i.e. objective judgment and value judgment. As to objective judgment, the exterior facts of weakened and lost anticipated possibility is the abnormality of incidental circumstance including serious conflict between one's own interest and other's or social interest and special situation sufficient to influence the actor's psychological will other than dilemma of interest conflicts; The interior facts of weakened and lost anticipated possibility is the influence imposed on psychological motive, that is to say, the actor realizes the abnormality of the objective exterior circumstance when making decision on action and such abnormality of the objective exterior circumstance imposes influence on his/her decision on action which is made by the actor based on such psychological understanding. As to value judgment, when deciding whether anticipated possibility is recognizable, the nature of incidental circumstance at the time of acting must be taken into consideration. Section Two explores the criteria of anticipated possibility. Firstly, it introduces four main kinds of criteria in academic circle including the actor criteria, the average people criteria, state criteria and classified people criteria and proves that the criteria of anticipated possibility shall be the average people criteria in legislative level and predominantly the actor criteria with the average people criteria as a complement in judicial level. Section Three shows some error understanding of anticipated possibility and expounds principles for handling those four errors.Chapter Five "Reference and Introduction of Theory of Anticipated Possibility" consists of three sections. Section One proves the necessity and feasibility of introducing the theory of anticipated possibility to China and points out that at present there exists social basis in China for introducing such theory which will not result in haphazardary justice and legal unity of China. Section Two explores the status of anticipated possibility in criminology system of China and points out that it is unsuitable to incorporate anticipated possibility into system of constitutive elements of crime of China as an excuse for non-responsibility surpassing law and regulation. In the current context of China's criminology system, we can learn something properly from the conviction methodology of common law. Treating anticipated possibility as a defense excuse and combining it with discrimination or leniency and exemption articles of criminal law in China to discriminate or leniently punish even not punish the actor are more practical. Section Three demonstrates the reference of anticipated possibility for criminal theory in China. The theory of anticipated possibility offers reference for theory of essence of crime of China to reasonably show that the essence of a crime is the combination of social harm and personal dangerousness rather that social harm only. The theory can also give reasonable explanation on some issues and be regarded as a foundation for leniently punishing or exempting punishment of execution of superior order, self-assistance and euthanasia.Chapter Six "The Theory of Anticipated Possibility and Criminal Legislation in China" consists of three sections. Section One analyses some related articles in criminal law and relevant judicial explanation from the perspective of anticipated possibility and clarifies some error opinions. Section Two explores the reference of anticipated possibility for criminal legislation in China and points out that criminal legislation shall include ethical value judgment and pay attention to disadvantaged groups. Section Three makes a tentative plan on legislation of anticipated possibility. This dissertation holds that it's not suitable to make some straight-forward stipulation on anticipated possibility in general provisions of criminal law in an unsatisfactory judicial environment with judicial official whose quality needs further improvement. We should reasonably utilize the existing discrimination, leniency and exemption articles in criminal law as possible as we can and make some proper amendment to some relevant articles to suit the need of lenient or exempted punishment by adopting weakened and lost anticipated possibility. As to special provisions of criminal law, it mainly refers to reflection of kin concealment system; as to criminal procedure law, it shall establish relational right to reject testifying and criminal reconciliation system offer a way for discrimination or lenient or exempted punishment as to an act lack of anticipated possibility or with lesser anticipated possibility.Chapter Seven "Application of Anticipated Possibility in Judicial Practice" is divided into two section. Section One demonstrates the influence imposed by anticipated possibility on a judge's judicial notion and shows that the theory of anticipated possibility require an equity notion from a judge who shall pay attention to ethical judgment in deciding a case. Section Two expounds some issues on specific application of anticipated possibility in judicial practice. Firstly, it demonstrates the basic guiding thought for application of anticipated possibility in judicial practice and puts forward three principles, i.e. "differed treatment, cautious application", "control through procedure" and "thorough provement". Secondly, it elaborates the specific judgment and application of application of anticipated possibility in judicial practice and explores the detailed elements for judging anticipated possibility and the detailed influence of weakened and lost anticipated possibility on conviction and measurement of penalty.