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The Theory Of Anticipated Possibility Andadoption Of China’s Criminal Law

Posted on:2016-05-06Degree:MasterType:Thesis
Country:ChinaCandidate:M Y CaoFull Text:PDF
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Decent from Germany and formed in the early of 20 th, the theory of Anticipated possibility in criminal law was advocated in Germany, Japan and other countries and areas of continental law system. The theory of anticipated possibility, especially the circs of anticipated possibility which beyond law, faded out with the development of economy and the perfection of legal system. As for this theory may provide reasonable explanations to some articles of criminal laws abroad, the value of anticipated possibility theory cannot be denied.The four-element constitution of crime system of China left no space for the theory of anticipated possibility. The academics also ignored the theory for a long time. However, in recent years, with the communications between the criminal law academics, the superiority of three-class constitution of crime system has been recognized. Academics stat to believe that the theory of anticipated possibility shall be praised, while others might still deny it. Here comes the questions: Is it necessary for our country to adopt the theory of anticipated possibility? How to adopt the theory of anticipated possibility and coordinate this theory to the whole constitution of crime system? Should application of this theory be constrained or not? This article would do the research of the questions above in 6 parts:The first part mainly discusses the definition and revolution of anticipated possibility theory. It describes the birth, prosperity and declination of the theory and the reasons.The second part mainly discusses the theoretical basis of anticipated possibility theory including the theory of relative freedom will, the weakness of humanity, the justice of criminal law, the tolerance of criminal law and so on, which laid a solid theoretical foundation for the theory of anticipated possibility.The third part mainly analysis the necessity for the adoption of the theory of anticipated possibility in China which concludes that not only some articles of criminal law of PRC shall be interpreted by the theory but also provide theoretical basis for complicated cases in practice.The fourth part mainly elaborates the problems and solutions to adopt the theory of anticipated possibility in China. It stress that four elements of the constitution of crime left no space for anticipated possibility theory. The prerequisite to adopt anticipated possibility theory is to build up the three-class constitution of crime.The fifth part mainly discusses the status and criteria of anticipated possibility theory. It should be recognized as the cause of preventive responsibility when lack of anticipated possibility. Meanwhile, when the anticipated possibility is in a low level, it should recognized as the cause of mitigating responsibility. The criterion for judgement of anticipated possibility supposed to beThe sixth part is the aim of this article. This part mainly discusses the adoption of the anticipated possibility theory, from which the legislation and juridical practice may benefit a lot. In legislation, the behavior of obstruction of justice of relatives of the suspects should be identified as the cause of mitigating responsibility. In jurisdiction, the application of anticipated possibility theory should be strictly limited, which means it should be applied in strict circumstances. Firstly, the objective situation is abnormal when behavior, and the interests between the suspects, relatives and others conflict seriously. Secondly, there is no alternative for the feason, which means the possibility to act legally is lacked or in extraordinarily low level.
Keywords/Search Tags:anticipated possibility, constitution of crime system, obstructing or mitigating responsibility, adoption
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