The Local Reference Of The Theory Of Anticipated Possibility For Discussion

The theory of Expectant Probability is full of self-protective instincts of human nature, understanding and caring, being filled with the spirit of "the law is not a difficult one".Since20th century, the theory herein has received many voices of agree and disagree. However, more and more countries have accepted this theory, especially Germany and Japan. In these countries, this theory has influenced the theory of criminal law and judicial practice stronger and stronger. With the development of the theory of Expectant Probability, Chinese criminal law scholars make a deeper study and investigation. Therefore, from China’s reality, the essay herein focuses on the discussion concerning the introduction of the theory in China from different aspects, in order to absorb the rationality of the theory. From this point, the author demonstrates some humble opinions on the necessity and feasibility of this theory as well as the law constitutes after the reference, hoping to receive some valuable contributions.Except the introduction and conclusion, the essay is divided into four parts.Chapter one mainly introduces the basic content of the theory of Expectant Probability. First, the author has discussed the definition of the theory of Expectant Probability from the generalized and narrow points, introduced and studied the different opinions made by Chinese scholars, and come forward with her own definition on the basis of the combination of our criminal law system.then, the origin and development of this theory have been introduced, especially the value connotations of Expectant Probability which have been demonstrated from philosophy, ethics and legal principles.The author has roughly concluded the scholars’opinions both at home and abroad concerning the status of this theory on the responsibility system and surface characteristics. After that, the author has analyzed the standard problems determining whether the offenders have expectant probability or not, investigated and discussed the theory of Country Standard, the theory of Actor Standard, the theory of Average Man Standard, the theory of Type Person Standard and Eclecticism. The author consider our country’s conditions and come forward with the opinion that using the theory of Average Man Standard and the theory of Actor Standard to decide whether the offenders have expectant probability or not is more rational.Chapter two discusses the necessity of the introduction of Expectant Probability into China. It has began with the academic debate on the introduction of this theory, and the author demonstrates the reasons of Agree Theory, Disagree Theory and District Theory in order to demonstrate her own opinion, that is, the introduction of the Expectant Probability is on the basis of our country’s present conditions. Faced with the factors that in the social transition period, more and more complexities and new judicial cases appear, the criminal law can not play its functions totally while citizens have fate faith and be restricted by the traditional theory.Chapter three introduces the feasibility of the introduction of Expectant Probability.The author demonstrates that our country has the proper theory soil and the possibility of the combination of criminal law system and Expectant Probability to analyze the feasibility of the introduction of Expectant Probability into our country.Chapter four introduces the legal conceive of the introduction of Expectant Probability. The first part discusses that if the theory of Expectant Probability has been introduced into China, where should it be in our criminal law system. The author makes a bold conceive, that is, to formulate it to clause22into the general principles of criminal law,Then, the author analyzes the matters of the determination concerning the factors whether the offenders can be thought to have no expectant probability or have less expectant probability, in other words, these components can be considered in the determination of the establishment of expectant probability. In the last part, the author boldly conceives the specific judicial procedures and comes forward with the situations in which the judge can reduce a penalty or exempt from punishment, and the Public Assessment and Expert Witness could be used in the judicial procedures.