Anticipated Possibility In Criminal Law

The theory of probability of expectation derives from the judgment of"Leinenfaenger"in Germany in 1897,afterwards,it was dispersed to Japan. The determination of Park Island gel V by Japanese centumviri was considered the precedent of the theory of probability of expectation.From the conception extension, the probability of expectation is definited in both broad sense and narrow sense criminally. Presently, the definition in narrow sense, that is the probable expectation of actor to doing legal behavior instead of criminal behavior according to the actual situation at the moment of action, has been identified by the most scholars; on the contrary, it is improbability of expectation thus.In terms of theory, there are three identifying standards of probability of expectation---the theory of actor standard, the theory of average person standard and the theory of law and regulation standard. The first two standards take the ability of the doer itself or supposing average person in the position of doer as the angle of affirming the identifying standard of probability of expectation, not the identifying standard of probability of expectation itself. Because neither of the two so-called standards tells the judge in what situation the doer has the probability and in what situation the doer doesn't have it; neither tells in what situation the degree of probability of expectation of doer is high and in what situation is low. However, the last"standard"concerns the basis of the judge's judgment, which thinks that the probability of expectation is in the standard of national order or legal order, thus it should be determined on the basis of what and to what degree the national or legal order expect. In a word, the so-called standard of probability of expectation provided by the criminal law theory is the angle of establishing the standard, not the standard itself.Although the probability of expectation was brought forward when judging whether the doer should shoulder the responsibility or not, its location in the system of criminal law theory has been disputing. The disputes of German and Japanese scholars mainly focus on the relation of probability of expectation and other responsible elements, at the same time, the dispute of our country's scholars also includes that the probability of expectation belongs to the domain of crime theory or criminal responsibility.So to speak, the theory of probability of expectation is the criminal law theory that guarantees the defendant's human rights by restricting the power of punishment of the country, which has been identified by the criminal law circle of countries all over the world. If the criminal law of our country can rationally take examples from the idea of the probability of expectation, the criminal law of our country will get perfected and many controversial problems will get solved. In the view of the present developing trend of criminal law, draw on the probability of expectation to perfect the criminal of our country is necessary.