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The Discussion Of Position And Application Of Anticipated Possibility

Posted on:2016-07-04Degree:MasterType:Thesis
Country:ChinaCandidate:S Y YanFull Text:PDF
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Anticipated possibility theory has been brought out in Germany and JapaneseCrime Law, also in their Law theory and jurisprudence, its spiritual core is ‘Lawshould not force people It plays an important role in the human and moral concern,reflecting the modesty of the criminal law and to play the criminal law functions. Inthe judgment of the German and Japanese Criminal, makes great reflection, but it’snot a long time before it brought in China, scholars didn’t accept the theory very well,Its roots in the theoretical system is not perfect, and judge the methods andprocedures are complex introduced anticipated possibility theory hasn’t been exactpositioning, only as a value-oriented? Or a behavior to reduce the sentence should beincluded in the law? Or a super-regulatory exemption elements? Also, the maincriteria for its judgment based on personal concepts prevail? Or subject to the generalconcept? Or subject to the requirements of the country? In our current law, some lawsactually implied an anticipated possibility of thinking, whether it should be part of theamendments to these terms whether there is room for expansion? The issue of thisseries are worthy of the scholars discussed. The passage discussed anticipatedpossibility theory and their applications in the judicial process for discussion aimed atclarifying its positioning, standards, and set up appropriate procedures and thencontinue applying this theory.The basic idea of this paper is,firstly,looking forward to discuss the position ofanticipated possibility in the criminal law, analysis its position in the three elementstheory. And the author suggests building up reasonable limits on this theory, and findthe system structure of the existing legislative system, may establish a negative crimeplatform theoretically for our criminal system, also, make up for the shortcomings ofour current laws. At the same time, the author believes that the expanding theinterpretation and application of anticipated possibility is likely to result in a greaterimpact on the criminal law, therefore, to limit the use of anticipated possibility ismore desirable in current situation. Under this prerequisite, we can analysis the application of anticipated possibility in both main-rule and sub-rule in current law,especially for the particular case, whether it should apply to anticipated possibility,and the role of anticipated possibility is worth exploring. In summary, the authorexpress his own opinion on anticipated possibility, said: When apply anticipatedpossibility,people should first focus on the objective conditions, and looking forwardthat whether it reaches abnormal state. After which people should analysis theperpetrator’s subjective stress situation, to comprehensively determine whether weshould apply anticipated possibility theory.The structure of this passage is: firstly the discussion of position of anticipatedpossibility theory build up the main theory of this passage. Under this condition. Wecan know the big scope of anticipated possibility theory and its application area. Then,the discussion of position of anticipated possibility theory depends on separated mainpart. In this way, we can know better of cooperation of anticipated possibility theoryand other elements in main theory. Also, discussing its application and how much itshould be applied. It’s should be mentioned that, in this passage,author discuss somecrime, and, point out that, anticipated possibility theory can’t be used in all situation.Therefore, cases should be discussed separately.
Keywords/Search Tags:Anticipated Possibility, Position in law, Application
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