Research On Legitimate Expectation And Relevant Legislation

The theory of legitimate expectation based on the regulatory liabilitytheory originated in Germany. Supporters of this theory finallydefeated supporters of psychology liability theory and made itdominant theory in this field after almost twenty year debate. It alsoobtained a dominant position in Japanese criminal law via thepromotion of Japanese criminal scholars. Nowadays this theory is verypopular in civil law countries and becomes the favorite theory inmodern criminal law. According to the theory of legitimate expectation,legitimate expectation is the one of the constitutive elements of acrime structure. Without legitimate expectation, no act shall be treatedas a crime. Unfortunately, to date, Chinese criminal law has neverrecognized legitimate expectation. Therefore it is of great significancefor us to study the theory of legitimate expectation and borrow someessential concepts from it with the aim to improve the crime structureof Chinese criminal law.This paper suggests that we make reference to the legitimateexpectation theory of criminal laws of civil law countries andintroduce the concept into the crime structure of Chinese criminal law.This paper has thus been divided into four chapters with total 40,000wards.The first chapter deals with the definitions of legitimate expectation.Currently there are two different definitions of legitimate expectation,a broad one and a narrow one. Taken into consideration of existingcrime structure system of Chinese criminal law, the narrow definitionshall be adapted. As a result, legitimate expectation shall mean thepossibility to expect a person not to commit a crime under thecircumstances of that time. Further, this part tries to developmethodologies of the research on legitimate expectation and study theconditions under which legitimate expectation decreases. Bothelements of fact and elements of value must be present for legitimateexpectation to decrease. Elements of fact comprise objective elementsand psychological elements which refer to unusualness of objectivecircumstances and their impacts on people's subjective choices.Elements of value refer to excusableness of certain acts with thepresence of specific objective elements.The second chapter tries to prove that it is necessary not only but alsopractical to introduce legitimate expectation into Chinese criminal law.Among others, this part also tries to approach those topics bothmacroscopically and microscopically.The third chapter firstly studies criteria of legitimate expectation andcriticizes perpetrator's criteria, state's criteria and other intermediarycriteria, proves the appropriateness of the criteria of the average personand proposes the application of both negative and positive legitimateexpectation. At the end, this part analyses the arising of debates onapplication of legitimate expectation in Germany and Japan, suggeststhe under Chinese law legitimate expectation shall apply to bothintentional offences and negligent offences.The fourth chapter makes some proposals on legislation of legitimateexpectation in China and suggests that it is necessary to categorize bylegislation certain conditions under which legitimate expectation coulddecrease. This part also studies conditions and rules for excusedexcessive self-defense and danger-escaping.This structure of this paper was developed along the line ofconcept-reference-application (legislative and judicial). The authortries to explore the origins of relevant concepts and to find realmeaning of those theories with carefulness and prudence instead ofpassion and sensation. The author also tries to develop newmethodologies and new aspects instead of sticking to existing researchmodel, particularly on the conditions for and categorization ofdecreased legitimate expectation.