On The Legitimate Expectation As An Adjusting Circumstances Of Punishment

Theory of the Legitimate Expectation originated in Germany at the end of the 19th century, the early part of the 20th century by the Japanese judicial practice to get approval further development, until today, its influence has been spread all over the world. The theory of the Legitimate Expectation of continental law system country criminal law theory plays very important position. In recent years, the theory of the Legitimate Expectation of our country criminal law educational world has been more and more attention to our country criminal law, which has important significance for receiving the generally accepted already. Based on the theory of the Legitimate Expectation as the foundation, trying to expected possibility as a given circumstances this perspective, probes into how it in our country criminal law the legislation and play the role in judicial practice. This paper besides introduction and conclusion, is divided into four chapters.Chapter one: The essence of the Legitimate Expectation analytical. The so-called Legitimate Expectation,is that can be anticipated doer did legal things in the special circumstances while choose unlawful act, it is the Legitimate Expectation. This chapter of the theory of the Legitimate Expectation by origin and the development of the theory of the Legitimate Expectation is expounded, reveals the essence and function of theory of the Legitimate Expectation, and on this basis the article is put forward as a kind of expected possibility into our country criminal law theory Circumstances of Measurement of Punishment.Chapter two: The Legitimate Expectation and Measurement of Punishment. Criminal conviction and Measurement of Punishment are two important aspects of trial activity, it requires not only accurate conviction, we also demand a fair and just Measurement of Punishment. This chapter discussed the Legitimate Expectation as a Circumstances of Measurement of Punishment possibility and rationality. Firstly elucidated the dual standards of Measurement of Punishment, expounded the two aspects of Measurement of Punishment: it's harmful to the society and personal risk. Social harm is that the damage of criminal behaviour to the social order and social relations. Social harm depends on the subjective and objective aspects. Social harm is the unification of objectivity and subjectivity. Personal dangerousness embodied different perpetrator had different individual situation. Different personal has different personal dangerousness. Secondly from several aspects discusseed the connection between Legitimate Expectation and Measurement of Punishment. Provided the theoretical basis for the point of this paper. In reality the fact is varied, which may influence the Legitimate Expectation degree of various specific objective conditions will directly affect the personal dangerousness and then affect the relation of criminal liabilities. Doer owing to affected by these developments and had no choice to the illegal things, personal dangerousness was greatly reduced, then they act on their own forced implementation of criminal acts to bear all the responsibility, is not reasonable, so the doer bear the criminal punishment should be reduced accordingly. Legitimate Expectation is to the reality of the specific circumstances of the freedom of the human will limit the relative freedom of will as the basis, in the specific reality of life in the behavior of human free will of normative evaluation, so as to determine the personal dangerousness, and then determine the doer in criminal law on the criminal liability.Chapter three: The scope of the Legitimate Expectation as an Adjusting Circumstances of Punishment. The Legitimate Expectation reveals the perpetrator acts with the law psychological motivations behind the formation, reflecting the objective conditions of freedom of the will of the people the extent of restrictions. If the special conditions accompanying the objective being to suppress people's freedom of the will or the impact of their criminal behavior is worth understanding and sympathy. Everything has a scale problem, while the Legitimate Expectation also no exception. Based on the previous discussion, natural conclusion it's rationality and inevitability as an Adjusting Circumstances of Punishment. And then the paper discussed the Legitimate Expectation whether existence and the size of degree. If no the Legitimate Expectation, do not constitute a crime, here's the Legitimate Expectation is convicted factors; If have it, but suffered by certain external stress, maybe lenient; the size of degree and the severity of the Legitimate Expectation with punishments proportional in proportion to change. And through the temptation with the crime different further define the scope of the Legitimate Expectation.Chapter four: Played a role in the Legitimate Expectation as an Adjusting Circumstances of Punishment. This paper based on the compromise way analysed the Legislative list and discretion mode. if only listed determined and related aspects of Legitimate Expectation among the provision, it can not exhaust all the circumstances, then the possibility can not expect to play the role of theory, for the development of the theory of criminal law is also a loss. But "if unrestricted application the theory of Legitimate Expectation, it could lead to excessive flexibility of the Criminal Code. "As well pass the legislation explicitly applicable theory of the Legitimate Expectation, as through the judge to some exceptions discretion, the content of legislation can't specific provisions included in it. Through the simpler and convenient way introduced the Legitimate Expectation into criminal law, make it play its proper role and benefits.