The Theory Of Expectation Of Possibility And China’s Criminal Law Content Abstract

Theory of Anticipated Possibility is rooted in the continental law system, its application in our country criminal law is world wide attentioned and controversial problem in China.In recent years, many cases are about the theory of Anticipated Possibility.Based on the analysis of the specific cases, this article discussed the the basic theory of Anticipated Possibility, the combination with the legal system of our country and the localization of transplant reference.There are four chapters as follows:The first chapter, the problem is put forwara:the analysis of several too difficult and controversial cases from the judicial practice leads the basic theory---the theory of Anticipated Possibility, disscussing these cases with this theory, we can easily solve the problems:guilty or not guilty, this or that, even the reasonable sentencing, which reflects the necessity of introducing Anticipated Possibility into China criminal law.The second chapter, the meaning of Anticipated Possibility:It mainly explain the basic concepts of Anticipated Possibility, evolution process and the theoretical foundation. As the core concepts of responsibility theory, it came from the judgment of Germany’s famous " Pica horse case"in 1897, through the efforts of many people, it established its place in Japanese scholars and other continental law system countries. The theory of Anticipated Possibility has strong vitality, this theory, the formal lies behind the philosophy contains profound ethical, legal basis.The third chapter, In conjunction with the legal system of our country, although this theory of Anticipated Possibility is the foreign words, but this has reflection and reaction in our legal system in any ages and the judicial practice. So we have laid the foundation of the localization, the ancient Chinese legal system and the principle of "mutual concealment of offenses among the kin", the existing criminal law provisions also contains the content, the value orientation of the theory of Anticipated Possibility also conforms to China’s current judicial reform.The fourth chapter, using the theory of Anticipated Possibility as the reference: first, the theory of Anticipated Possibility shackle transplantation bottleneck continental law system with Chinese criminal law, the difference between the conflict, and put forward the "form" gave the "god", through the analysis of the connotation and essence of that can be expected possibility in our criminal motive of good type. Then elaborated on the judicial practice expected possibility for standard and scope of the existing in the review, on the basis of academic point of view, the author puts forward his own understanding. So-called the judgment standard, is to use what criterion for judging the possibility of taking lawfulness, in this problem, there are many totally different points of view. Through the comparison of various views and comments that both parties from equity interests as the principle, punish crime, and actively recover damage, strive to achieve the level that letting the expectent, the man in view and the victim all take acceptable, many shortcomings can be in maximum resolution between several theories because of the different standards of judgment, and it can also bring more advantages than other standards. If there is no possibility to whether the responsibility for the super regulations but due to friction. This is about the theory of Anticipated Possibility of scope. A certain limits, and three kind of view. On this issue, the author thought from the legislation of our country actual and principal of a legally prescribed punishment for a specified crime, the expected possibility should not only is the judgment on excluding legal responsibility or relieving obligation, but also should exceed the regulations for independent exert its resistance but or mitigate criminal responsibility, especially to the application in a crime shall be cautious attitude. In order to prevent the expected possibility from abusing and misuseing in judicial practice, The author further proposed legislation should typifications and procedural constraints of supervision as the two aspects to be perfected, in order to realize the theory of Anticipated Possibility, equity and justice.