The Study On The Theory Of The Anticipated Possibility

The anticipated possibility which as one of the responsibility elements of the civil law system is the core of the normative responsibility theory, it embodies the relief to the human weakness and the integration of the ethic and law. The existence of the anticipated possibility or not and its extent inflects the existence of the liability or not and its extent accordingly. In order to make the conviction and the measurement of penalty fully reflect the responsibilitism principle. ,namely, there is no penalty if without liability and the penalty is grave if the liability is great and vice versa, thus it is necessary to take the anticipated possibility into consideration adequately.However since the theory of the anticipated possibility has a broad and profound background and in reality, the situations or circumstances which can not be anticipated possibility vary greatly,so it is certain to regulate the anticipated possibility into the general provision of the criminal law and integrate its ideology into the specific provision , too.And at the same time to admit the anticipated possibility is one of the causes of the prevention of the biability.which surpassing the law so as to fully carry out its function of the protection of the human right.The first chapter of the dissertation introduces the connotation of the anticipated possibility and its ideological basis, theoretical background and value basis;There are two kinds of interpretations of the anticipated possibility which are in the narrow and broad sense respectively.In the broad sense, for the criminal, it refers to the possibility which can expect him or her not to exercise this conduct rather than some other kinds of lawful conducts in terms of all circumstances including the internal,external ones when the conduct being exercised, and in the narrow sense, it refers to the possibility which can expect the criminal to exercise some other lawful conducts instead of this kind of illegal conduct on a basis of the discernment of the internal fact and the surrounding of the exercised conduct. The dissertation adopts the narrow sense concept. The rulers in ancient China attached great importance to the morality of the law and the ideology of the anticipated possibility which be considered as the integration of the ethic and law and its first embodiment is the institution of"the concealing between relatives"in the Spring and Autumn period. The anticipated possibility applied firstly to the odd horse case in German and then the event of the fifth BaiDaowan in Japan. The theory of anticipated possibility originated from the predominance of the new school in the criminal law academic field which replaced the old school and argued that the people is not in possession of the free will and is determined by the social environment, under such circumstances as the possibility can not be anticipated, the actor who will not possess the free will of not committing the crime subjecting to the surroundings at that time when the event occurred, therefore it shows that the actor is not of the dangerous in terms of character and not justified to defend to him or her in socially. The theory of the anticipated possibility has been matured during the period of the establishment and development of the personality criminal law theory.The individual righteousness is the value basis of the generation of the anticipated possibility. In terms of the imputation principle, the norm responsibility theory which regards the anticipated possibility as the core element substitutes for the mental responsibility theory which considers the responsibility as a kind of the subjective psychological state.The second chapter discusses the position of the anticipated possibility of the crime constitution . As for its position, the first view considers that intention and negligence include the anticipated possibility.The anticipated possibility is the necessary element of the intention and negligence constitution. That is to say if there is no anticipated possibility then there is no intention and negligence. The second view thinks that the anticipated possibility is the third responsibility element which ranked in the same class along with the responsibility capacity, intention and negligence. A third view argues that the anticipated possibility is the cause of the prevention of the liability. The forth view argues that the anticipated possibility theory further contains the theory of overall application and limited application . The fifth viewpoint treats the anticipated possibility as the rationale for the measurement of the penalty. The author thinks that the anticipated possibility not only applies to intentional conduct but also to negligent conduct , the cause of the prevention of the liability determines the existence of the liability or not and the rational for the measurement of the penalty determines the greatness of the obligation.The third part explores the identification criteria of the anticipated possibility.With regards to the identification criteria of the anticipated possibility, the theory of the actor standard , the average man standard, the national standard and type person standard are introduced respectively, then the defects of each theory are elaborated accordingly.The identification criteria and scope of the anticipated possibility has a instructive significance to the actual application .The author thinks that the progressive and three-dimensional judgment standard can be used in reality, for the first judgment , the average man standard can be used and then amends the former actor standard according to the requirement of personality responsibility theory for the second judgement.In the fourth part, the impact which the anticipated possibility plays upon the existence or greatness of the criminal obligation is discussed by referring to the case of XuTing from the perspective of the responsibilitism.The fifth chapter explores the anticipated possibility errors which can be divided into positive and negative ones, the author thinks that in case of the occurrence of negative error of anticipated possibility,the liability for the perpetrator(s) should be exempted from.The sixth part mainly discusses the establishment of the anticipated possibility in Chinese criminal law on the aspects of the type of the anticipated possibility, the significance of the introduction of the anticipated possibility to the improvement of the Chinese criminal law theory, the channel of the introduction of the anticipated possibility theory and the application of the anticipated possibility in the criminal policies and so on respectively .