Research On The Expecspective Proelihood Application From The Perspective Of Criminal Justice Practice In China

Expected possibility theory is one of the important theory of criminal law,is a profound cultural theoretical system,reflects the integration of ethics and law,embodies the criminal law on human weakness concern and relief,Chinese criminal law has not clear the concept,but in the practice of criminal justice using expected possibility theory concept or connotation of more cases,but in recent years,the study of expected possibility theory is decreasing,necessary to further study our judicial practice of expectation possibility theory,and the theoretical research results,guide the judicial practice.This article teaches criminal law around the expectation possibility theory Justice analysis,clarify the concept,theory history,comparison theory in Germany,Japan and China,respond to the possibility theory,the expected possibility theory,combined with the current application of the possibility theory localization,the application path paving and design,focus on the application of the possibility theory in our criminal justice practice.The introduction part mainly expounds the research background and research significance,and summarizes the theoretical research on expectation possibility at home and abroad.Summarize the research methods and briefly introduce the research innovation and research limitations.Chapter I In order to analyze the current situation and problems of the expected judicial application in China,this chapter takes 449 judicial documents in the past decade as the research samples to analyze the expected potential application problems in criminal justice practice.Through empirical research,from 2011 to 2020,as the year advanced,more and more judgments related to "expectation possibility" theory,the article on expectation possibility theory research showed an overall decreasing trend year by year after 2011,the reduction of theoretical research and the increasing number of judicial application,in judicial practice,the application of "expectation possibility" cases presented steadily The growth trend,and the wide range of application,shows that the expectation possibility theory needs localization application.With the continuous deepening and development of China 's socialist legal system construction in China,the continuous renewal of judicial concept,the expectation possibility theory has a growing application space and application demand in China' s judicial practice;By analyzing the possibility of related judgment,we can find that although the expectation possibility has not been clearly written into Chinese criminal law,but in judicial cases,the possibility theory as a defense reason,the judge in the possibility to use simple analysis of reasoning,but few judges will expect the possibility theory as a crime The cause or the obstruction of lighter or mitigated punishment,but there are misuse and arbitrary application in judicial application,and the theory of expecting possibility has the necessity for further study.Chapter two for the theoretical basis of possibility and judicial practice expectation,the current criminal theory research and judicial practice,a certain reason is that the practitioners of criminal law theory,the empirical research,this chapter based on the theory of expectation possibility,on the basis of the basic theory,review theory differences and its development,clarify the concept,and should follow the general principle of possibility theory localization,to answer the expectation of judicial practice.Chapter three to expect the possibility of judicial application of the theory and practice,expect the possibility theory by the academic and practice,given the possibility theory can solve the problems facing our society,and for the improvement of local criminal law,Chinese criminal law community since the mid-1990 s began to expect the possibility theory of criminal legislation and judicial application research,and in a period of heating time and results are quite a lot.But in recent years,there began to be a voice of doubt,believing that due to the characteristics of the risk society and expecting the possibility of the society The lack of sufficient argument,because China's criminal law system does not place the appropriate theory of expectation possibility,and reconstruct the existing criminal law system,the realistic possibility is insufficient.There are two theoretical arguments about expectation possibility localization in China,one is to introduce the expectation possibility theory,the second is to what extent the expectation possibility theory;in recent years,the risk society,due to the characteristics of China,because the criminal law system has not placed expectations The proper position of energy theory and the realistic possibility of reconstructing the existing criminal law system is insufficient.Therefore,some is argued that discussing the judgment criteria and specific application of expectation possibilities are only intellectual games that scholars entertain themselves.In the discussion on whether the localization of expectation possibility theory,some scholars clearly put forward clear objections that the theory is "unpredictable" in the context of China's criminal law.This chapter sorts out the main views of negative theory,mainly including contradiction with the basic principles of criminal punishment,vague expectation possibility value,expectation possibility has historical limitations and expectation possibility theory Conflict with the criminal law system,this chapter responded to negative theory,to clarify the judicial practice,should be dialectical view of the localization of the corresponding spirit of the theory,possibility theory connotation localization necessity and significance,for the lack of criminal law in theory and practice in our practice,on the basis of questioning and criticism on the possibility of theory localization.Chapter four for the possibility in China's theoretical system positioning and judicial practice judgment,expect the possibility of system positioning is the core of theoretical localization,possibility is the possibility theory localization,the criminal law system is the most reasonable,and the possibility and degree,there are different views,this chapter based on clarifying the possibility of system positioning and judgment standard,provide the basis for localization path research.This chapter lists several theories of prospective criteria of possibility judgment The author believes that the expectation possibility is the essential element of the norms,and it is the evaluation factors,premise factors and negative factors in the subjective elements of the crime.In our current judicial practice,criminal law return to common sense to promote justice,realize judicial human rights guarantee has practical significance,judicial practice of expected judgment should also return on the basis of the stick to the principle of law,with xi thought of rule of law as the guidance,adhere to the people as the center,scientific legislation,fair justice,if a standard can not guarantee in various circumstances can accurately judge the behavior of expected possibility and size.Judge whether the actor has a period When the possibility is a diversified and complex problem,for the establishment of standards also needs to go through continuous integration and evolution,the standard group of expected possibility judgment should be established.Theoretical research should respond to the expectation of judicial practice,and collect the argumentative materials of judicial practice in order to further type the judgment.Chapter five for the possibility of criminal judicial practice application path,expect the possibility theory show human care,can be said to be an important support of criminal law and criminal justice character,China 's criminal justice has been judicial stiffness,mechanical lack of human feelings,such as justifiable defense,emergency risk difficult cases judgment after "public opinion",often because China' s criminal justice personnel mechanical law enforcement,lack of expectation possibility theory,easy to make the general sense of justice and empathy judgment results,the author thinks,should dialectically view the possibility of localization of judicial practice The problem of application,will expect the concept of possibility for reference,localization and application in judicial practice.The localization of possibility theory is conducive to coordinating the relationship between the actor 's behavior and crime punishment in China' s crime theory system.The practice of German and Japanese criminal judicial trial has gradually limited the possibility of expectation,which can not become the reason for the application space of the possibility of expectation theory in China.Opening the judicial application of expectation possibility will not lead to the failure of the general preventive effect,expectation possibility localization will not lead to pocket crime,according to the basic spirit of legal punishment,the crime must be legal and the crime does not need to be obtained The practice of criminal law in all border countries unanimously agrees.Even in the four elements,we can still reasonably adjust the conviction and sentencing by expecting the possibilities.Based on the practice of criminal justice in China,we should promote the localization application of expectation possibility theory on the basis of questioning and criticism,enrich the cause of crimes in China,prevent the "activity of criminal law",and realize justice in individual cases.The possibility can be used as a reason for exceeding the regulation,but it should be strictly restricted and applied carefully.Finally,the concluding section.Expected possibility in judicial practice is a systematic process,we need starting from our legal cultural background,based on the development of criminal law theory and judicial practice,reasonable analysis and application,based on our national conditions,judicial practice for further application,time to write our criminal law,realize the common development of criminal law theory and criminal law and mutual promotion of criminal justice practice.This thesis attempts to sum up the relevant research results of the theory of expectation possibility,sum up experience,clarify concepts,discuss theoretical basis,analyze judgment criteria and summarize how to localize.Based on the basic problems of the thought of expectation possibility and the reference significance of our country,this paper analyzes how to localize the theory of expectation possibility,introduce the theory of expectation possibility into the local design,theory of criminal law and promote the practical significance of criminal justice practice.