Research About Theory Of Expectant

The origin of the theory of expectant probability is the case of horse it has cacoethes in germany. German scholars had founed the theory of expectant probability and developped it Criminal law and criminal administration of justice in countries of continental law system have been deeply affectd by it.The main point of this disquisition bear on the inbeing, standard, confineof expectant probability, the relation between expectant probability and guilty mind and practicality of this theory in china.Expectant probability reflect relative freedom of human volition and admit the fact that objective conditions can restrict freedom of human volition. Actually, the influence that expectant probability impose on guilty mind and criminal responsibility is the influence that impose on freedom of human volition. So, expectant probability is a kind of integrant of criminal capacity. ,In normal instances, we can draw the conclusion that he has criminal capacity, if a doer is in his right mind and at age of criminal responsibility. But in special instances, when expectant probability does not exist or got little, actor's criminal capacity has lost or been weakened.The case that lack of expectant probability can prevent from taking on criminal responsibility over law must been strictly restricted. The standard that judge expectant probability exist or not should mainly according to actor's ability,at same time, everyman's ability should be consulted.The theory of expectant probability can be used for reference to revise theory onconstitutive elements of crime in china. Structure of subject of crime can be change into "subject of crime- criminal capacity- age of criminal responsibility + right mind(factor of oneself) + expectant probability(extemal factor)".Besides the theory of expectant probability can help us to get rid of logistic antinomy between the theory of impediments to social harm and the theory of constitutive elements of crime, it can explain urgent danger prevention, execution of decree, etc,with reason.There is no word as "expectant probability" in Chinese criminal law,but the thinking of expectant probability is contained in Chinese criminal law. Introducing the theory of expectant probability into Chinese criminal law is propitious to aright apply criminal law.