The Theory Of Zumutbarkeit And Its Usage

Zumutbarkeit produced in early 20 centuries. From then on, zumutbarkeit became moreconsummated and infective. In continental law system, especially in Germany,Japan and Taiwan,umutbarkeit always is one of important part in criminally theory and judicial practice. In our country,research of zumutbarkeit is just beginning. So, we need more study for it in theoretical way andpractical way. In this occasion, this article should analyze the zumutbarkeit in three points ofview, how to modify the theory of zumutbarkeit in our country, how the zumutbarkeit directcriminal legislation and justice practice.In the foreword, The zumutbarkeit, means based on the occasion, people could be expected do somethinglegal instead of do something illegal.There are 4 chapters in the text.We should talk about summarize of zumutbarkeit In the first chapter. Zumutbarkeit bornedin the Leinefanger case in 1897, it is one of core conception of theory of norm responsibility.Zumutbarkeit is really energic, because it base on relative freedom of the will,humanitarianismof criminal law, limitation of criminal law and The purpose of the criminal law.In the second chapter, we should introduce the most important argue of Zumutbarkeit. Thestatus of Zumutbarkeit system, the judge standard of Zumutbarkeit and applicable range of Zumutbarkeit are key issue of Zumutbarkeit.The scholars of continental law system aver the argue of Zumutbarkeit belong toculpability.Independent element theory, the element of voluntary or negligence theory and the reason ofobstructing responsibility theory are three main theories according to the status of Zumutbarkeit.The reason of obstructing responsibility theory is the best one, it created the mode of principle toexception, this mode explain the Zumutbarkeit as a the reason of obstructing responsibility, themode make this theory have the important theories and practice the meaning.The judge standard of Zumutbarkeit means how to judge if people do legal behaviorspossible. The traditional theory is the doctrines of legal criterion, behavior criterion and averagecriterion. Now days, the criterion of type throng becomes the primary theory. Compare withother theory, the type throng as the criterion explain the existence and degree of Zumutbarkeit,applicable in every link of justice practice, better than the other three.The argue of applicable range of Zumutbarkeit is if the reason of obstructing responsibilityout of norm existed without applicable. In my opinion, it is no reason to refuse the almsgivingfor helpless people in bad circumstance. Of course, the cautious attitude is also necessary.In chapter three, we should introspect native the system of criminal component withapplicable range of Zumutbarkeit theory and lead native justice practice and legislation of criminal laws.Compare the four important items of continental theory of criminal component with threeimportant items of native traditional theory of criminal component, we can see Zumutbarkeit ishard to be useful in planar, one off native traditional theory ofcriminal component. The rule about Force Majeure in 2^nd part of the 15^th chapter shows Zumutbarkeit; The rule about fair defence in 20^th chapter shows Zumutbarkeit;The rule about urgent danger in 21th chapter shows Zumutbarkeit;The rule about crime 28^th chapter shows Zumutbarkeit. it bring great help for our criminal laws.But for native justice practice and legislation, the introduction of Zumutbarkeit should risethe huge leading function. It is really helpful for comfirm the direction of native legislation,make the rule of law be more humanistic. Less subjective, moreimpersonality is characters of native justice practice.The introduction of Zumutbarkeit helps us to scale these two items morecorrected and balanceable.In the last part of this article, we prospect the foreground in China.