Research On The Application Of Zumutbarkeit In Chinese Criminal Law

Zumutbarkeit refers to the possibility that the actor could be expected to make legal activity and avoid committing crimes in accordance with particular circumstances at the time of action. Conversely, the actor can use it as a cause of non-imputability to reduce or exempt from punishment. The theory of Zumutbarkeit derived from "the horse cast a frenulum case" in Germany. After one hundred years of development, it has become mainstream theory of criminal responsibility widely acknowledged and utilized by Germany, Japan and others countries adopting civil law and produced positive and profound influence in the legislative and judicial practice. On the basis of current research achievements and Chinese criminal law practice, this paper analyzes the necessity, feasibility and methods of applying the theory of Zumutbarkeit to Chinese criminal law system and put forward thoughts and opinions of the author.The theory of Zumutbarkeit generated from reflection and correction of criminal responsibility theory by the German scholars regarding the specific case, and it is further developed and explained in the light of long-term accumulated legal idea and experience. The theory of Zumutbarkeit embodies rich value and connotation, and acts as a cause of non-imputability in crime theory. Because the crime constitution in our country is quite different from continental law system, and the theory Zumutbarkeit also has defects of fuzzy application standard, problems such as value conflict and no legal basis will emerge in applying it to Chinese criminal law. The author tries to give a response in the perspective of legal development and the judges’ unprompted decision. From both theoretical and practical point of view, this paper argues the necessity of applying Zumutbarkeit to Chinese criminal law. By analyzing reflections on the idea of Zumutbarkeit in ancient legal system and current legislation of our country, the author tries to find the social basis of applying Zumutbarkeit to Chinese criminal law legislation. By combining it with analysis of judicial precedents, the author finds that it does not only in practice play a positive role to solve problems, but also reveals modest and humane idea of criminal law and the trend respect public opinion. In the maintenance of the existing legal provisions and the constitution of crime in our country, this paper summarizes feasible ways and paths of applying Zumutbarkeit to Chinese criminal law.