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Research On Application Of Anticipated Possibility Theory In Criminal Judicature In China

Posted on:2016-04-26Degree:MasterType:Thesis
Country:ChinaCandidate:X N LiFull Text:PDF
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As an important theory in the criminal law of continental law system,more and more cases in present legal practices involved the theory of anticipated possibility,which has produced certain influences on the criminal theory and legal practices in Germany and Japan.In the present criminal theoretical research and legal practices in China, study on the foreign theory and practice is beneficial to our criminal judicial reform.Beginning with a large number of cases, this paper reveals the practical significance of the theory of anticipated possibility in legal practice and the necessity of introduction of such theory in criminal law and criminal procedural law,discusses the application condition and problems of the theory of anticipated possibility in present legal practice in China and proposes the rules establishment for the application of the theory of anticipated possibility.In the first part, the author elaborates the birth and development of the theory of anticipated possibility to illustrate that such a theory is a product of impartial judgment of cases, a need of legal practice and a necessity of development of government by law,then the author addresses the contemporary development of the theory of anticipated possibility.At present, popular theory of responsibility impediment believes that anticipated possibility is consist of statutory anticipated possibility and super-law anticipated possibility and the super-law anticipated possibility is an exceptional cause for responsibility impediment and statutory anticipated possibility is a normative cause for responsibility impediment.It also believes that anticipated possibility is a factor and basis of responsibility theory system and the judgment of cause for anticipated possibility belongs to an objectivity category and should be considered into accountability directly.On the judgment standard for anticipated possibility,the author of this paper proposes a comprehensive evaluation of average man standard assisted by actor standard.In the second part,the author first makes an analysis on the theory of anticipated possibility from different angles of its connotation and extension,holding that both the internal factors of human beings and attached objective situations should be regarded as conceptual factor of anticipated possibility, then establishes status of the theory of anticipated possibility in the criminal theory system from the perspective of jurisprudence and analyses the mental coincidence between the theory of anticipated possibility and the principle of legality.The author presents that anticipated possibility can be separated into super-law situation and legal situation.It is not only cause for responsibility impediment but also cause for responsibility mitigation and it can be employed to explain exemption stipulation in current laws and also be beneficial to an objective and fair conviction and sentencing of individual case in super-law situation.The author secondly put forwards that the judgment criteria of anticipated possibility in legislation and judiciary is different and a proper standard should be established according to the legal reality.In the third part, based on an demonstration of application condition and cause analysis of the theory of anticipated possibility in civil law countries(regions),the author verifies the legislation and judiciary value of such a theory in the hope of providing useful reference to the application of it in legal practices in China.In the fourth part,the author discusses the application basis and problems of the theory of anticipated possibility in criminal justice in China,illustrates the embodiment of such theory in the present criminal legislation in China and makes a comparative analysis between different legal effects with or without adopting such theory in specific judicial application to illustrate juridical value of such theory for the protection of substantial justice of individual case.Nowadays, more and more cases demanding appraisal by the theory of anticipated possibility are emerging,however,without proper stipulation of such theory in criminal laws including substantial laws and procedural laws,organs of investigation don’t intend to collect related evidence to prove anticipated possibility to save trouble and organs of prosecution and trial also have no idea about concrete situation to make judgment.Even on an occasion where anticipated possibility can be deduced according to ordinary standard, the anticipated possibility has been applied to the judgment which ultimately live up to popular psychology.After all,such a handling is in embarrassment under the principle of legality in China.In the fifth part, the author proposes rules establishment of the application of anticipated possibility.As a cause for responsibility impediment,the application of anticipated possibility should be in accordance with the concrete situation of individual case instead of the distinction of negligence and intention. The application of such theory should be based on a comprehensive survey within the limitation of abnormal situation to fully guarantee its application in both conviction and sentencing.At the meantime to establish the status and value of anticipated possibility,relevant control and constraint institution should be established in investigation, prosecution and trial procedures.Strict system for evidence collection,examination and application should be established and relevant prosecution and trial procedure should be improved to prevent power abuse and crime indulgence and to realize both substantive and procedural justice of cases.
Keywords/Search Tags:anticipated possibility, exoneration, analysis of legal principle, the judicial application
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