Sins Of Presumption And Look Forward To The Possibility

During the period of affirming a crime, the behavior person's subjective guilt is an essential item. So-called subjective guilt, means the behavior person to own an intentional or perhaps faulty mental attitude to his endangering result of social and his behavior. The mental appearance for person to carry out crime is very complicated, summarizing to have intent and fault these two kinds of basic forms, and crime purpose and crime motive these two kinds of mental main factors. However, in the judicial actual situation, the suspect person or accused often deny them having a crime intentionally or the circumstance of mistake, then we will have to confirm whether they have the subjective guilt and the guilt is big or not. But, because the contents of subjective item is a mental attitude, so it is very difficult to confirm the past subjective matching, this also becomes a long-term problem in judicial actual field, many scholars carry on analysis to this problem, but they can not put forward a good solution.Because the theory of anticipated probability actually is the reflection of will freedom and the acknowledgement to the limit of the person's will freedom function in the objective condition, the theory can confirm whether the behavior person have a will freedom or have a subjective malignant. By fetching in the theory of anticipated probability, we can confirm whether the behavior person have a guilt in the given circumstance, if the existence behavior is selectivity, but the behavior person do not choose the legal behavior, then we can prove him to have a anti-social intention, existing subjective guilt. Whereas, if he doesn't have a selectivity behavior, we can prove him to lack will freedom, thus, the guilt also doesn't exist.This text tries to use the theory of anticipated probability to solve this judicial actual problem. The full text is divided into three parts.Part One: The general theory of guilt presumption and anticipated probability. In the first part, the author wants to discuss the contents of guilt, the forms of guilt, and the signification of the guilt presumption. The author also discusses the theory of anticipated probability and its effects to guilt. Through the analysis of the relation between the guilt presumption and the theory of anticipated probability, the author suggests that we should import the theory of anticipated probability into the guilt presumption to resolve the problem in judicial practice.Part Two: The estimate standard of anticipated probability. In this part, the author analyses the current academics of the theory of anticipated probability, and points out their defects or shortcomings. Bellowing, the author advocates the introduction of "common sense, common practice, general reason" theory, and looks forward to it as the estimate standard of anticipated probability.Part Three: The analysis of actual cases. In the part, the author chooses three more typical cases, and tries to analyse them by the theory which we talked above with a view to prove the correctness of the theory.