Look Forward To The Exploration Of The Possibility Theory

The theory of anticipated probability originated from a famous case in Germany, which touched off a close nation-wide attention in both fields of criminal theory and judicial practice. Since Frank, a well-known scholar born in Germany, proposed that the theory of anticipated probability serve as the crucial component of the theory of normative liability, he and other advocates vanquished the supporters for the theory of psychological liability after a polemic lasting for about twenty years, and finally established the theory of anticipated probability as a position of considerable significance in the criminal law theory of the continental-law countries, which is widely recognized and accepted in criminal legislation and judicial practice. In accordance with the theory of anticipated probability, it is one of the prerequisites for the liability of normative value. In other words, a crime cannot be claimed in the destitution of the anticipated probability. For the reasons known to all, the theoretical system of the criminal constitution in the mainland of China being poorly founded from its inception, compared with the criminal constitution in the theory of continental-law countries, exists many lopsided phenomena. This article, based upon the traditional system of criminal theory in China, has made an extensive and penetrating exploration of the theory of anticipated probability, and critically learns and assimilates the reasonable elements of the theory of anticipated probability for the furtherance of the development and perfection of the research on the criminal theory with Chinese charateristics."Common sense,common feeling,common reason" tells us that any law cannot compel people to do what they cannot do, otherwise the law will be destroyed. Only the law embodying the rule of basic human rights can be respected and supported by the people, on the ground of which the theory of anticipated probability pays great attention to the fragile human nature, and inspires people to contemplate the relative questions. On the purpose of assimilation, the author has attached major importance to the research on four theoretical and practical questions pertinent to the theory of anticipated probability.As the fundamental question, the connotation of the theory of anticipated probability is closely germane with the range of application and the theoretical position in criminal law, etc. From the view of extensive latitude, there exist the broad definition and the narrow definition. Upon the basic foundation of the theory of anticipated probability in its nature, the author proposes that the connotation should be, in accordance with the objective circumstances, whether the person can be anticipated to control or should control his or her behavior not violating the criminal law, as well as its degree. Subsequently, this article systematically expounds and analyzes the sources of thought,the historical development and the reasonable foundation of the theory of anticipated probability in details.In the second part of this article, the author has made a pioneering exploration on the constitution of the theory of anticipated probability, and expounded the components of technique and the components of value. And the components of technique is subdivided into the components of fact and the components of psychology, while the components of value, upon the components of technique, means the justifiability of the behavior in criminal law. In addition, for the purpose to grasp the essence of the theory of anticipated probability, the author has briefly demonstrated the questions on the criminal liability and the will of freedom which are relevant to the theory of anticipated probability.The application of the theory of anticipated probability is a process of value judgement, to which a scientific criterion is indispensible. At present, there exist four kinds of criterion in the application of the theory of anticipated probability: the national criterion,the personal criterion,the common criterion and the mean criterion. In this part of the article, the author critically analyzes the above-mentioned four criteria, and proposed the amended personal criterion, which is the overhaul and the perfection of the above-mentioned criteria. In addition, in this part of the article, the author gives an exhaustive account of the questions of the theoretical position in criminal law,the wrongfulness of the theory of anticipated probability and the applicable range of the theory of anticipated probability.As the final aim, in the last part of this article, the author stresses on the expoundation on the assimilation of the gist of the theory of anticipated probability. In the view of the differences between the system of criminal theory in the mainland of China and the system of criminal theory in continental-law countries, the author puts forward that it is not proper to insert the theory of anticipated probability into the system of criminal law in the mainland of China as a whole, but to assimilate its marrow in the field of criminal law according to the status quo of the criminal theory and judicial practice. For example, in avoidance of the conflict with the principle of legality, it is proper to assimilate the so-called "super-normative circumstances of the anticipated probability" in the continental-law countries into the 13th article and the 16th article of the criminal code in the mainland of China, and assimilate the normative circumstances of the anticipated probability into the relevant articles, such as the justifiable defense, the act of rescue, etc, by which can directly serve as the rule in the judicial practice of criminal law.