Research On Some Problems Of The Theory Of Anticipated Possibility

Criminal responsibility has various essence and contents in the different society period. The doctrine of norm liability, which is product of the argument between the new faction and older faction, is the current doctrine of criminal responsibility in the countries of continent law system. The doctrine is based on anticipated possibility , its core concept. Because our criminal comprehension is still in the process of the mentality liability, it is needed to transplant the theory of anticipated possibility. The aim is completing once the study process with the panorama type. The part one is about the basic theory of the theory of anticipated possibility. The theory of anticipated possibility, originated from Germany, has gotten approbation in many country's criminal law science. These are various concepts about anticipated possibility. The broad concept suggests the anticipated possibility is decided on the inside habitus and the outside status of the act, but the confined concept suggests the anticipated possibility is only decided by the outside factor. The author believes we'd better apprehend the anticipated possibility from the broad aspect because the inside habitus is the subjective basis of behavior's volition. Additionally, some scholars seize upon passive concept. They reflect different standpoint. The author suggests the anticipated possibility is the actor can commit the legal act, not criminal act, on the grounds of realistic habitus at the act occurring, otherwise it is anticipated possibility. The circs of anticipated possibility is the status which reflects the anticipated possibility, it is divided into the circs of anticipated possibility in norm and out of norm. The circs of anticipated possibility in norm is the circs which are reflected in the criminal law and can explain the behavior has the possibility. The circs of anticipated possibility out of norm is those circs which are not reflected in the criminal law but can explain the possibility. The second part is the situation of the theory of anticipated possibility. The major hold with the doctrine of responsibility element. The doctrine is divided into independent element theory, the element of voluntary or negligence theory, passive element theory . All of these three theory can not reflect the anticipated possibility's function enough, In some degree, They are lack of legal basis. It might be also result into lawsuit problem. Even though can we ignore the supra problem, these doctrine has respective unconquerable problem. A few of scholars believe the anticipated possibility is the element belongs to penalty. So it is wrong for separating the concept from the offence theory. There are also many viewpoints in our criminal law theory. The author believes we'd better lay the concept in theory of criminal responsibility. The transaction can make up for the abstraction in the older theory and avoid the defect in Germany, Japan and Taiwan criminal theory. The third part is about the criterion of the theory of anticipated possibility. Different scholar has different viewpoints about the criterion of the anticipated possibility. The theory is divided into the doctrines of legal criterion, actor criterion, average criterion and assorted splitting the difference criterion. The legal criterion is unusually used because it can't assure the judging is objectively disinterestedly all-rounded carried out. The actor criterion is not tally with the actual judicature. It can results in making the legal cosmos flabby and deviates the unify requirement. The average criterion's main effect is its limit is too blured to reflect the counseling rule of the penalty. It can also confuse the ability and the anticipated possibility. Those splitting the difference criterion is unfeasible because all of the supra criterion have immanent contradiction and antagonism. The author believes it better take the type throng as the criterion. The criterion of the type throng can reflect the assorted throng and their social trait , it can be used in the different local and...