The Sinicization Of The Theory Of Anticipated Possibility And Its Practice Research

Anticipated possibility theory originates from Germany. It has become an important criminal law theory in civil law system countries represented by Germany and Japan.Anticipated possibility refers to the possibility that the actor could be expected to make legal activity at the time of action. Any violations of this expectation will cause responsibility issues. Even though there is no systematic carding about this theory in Anglo-American legal system countries, anticipated possibility is used as legitimate defense to mitigate or annul actors' criminal responsibilities. The theory is accepted by so many countries mainly because it contains the humanistic concerns that “will not force someone to do something against his will”, which has provided rational basis for some difficult cases and played an important role in juridical practice. The theory is developed in western countries, but in recent 10 years,Chinese criminal law scholars also paid close attention to it, and expressed many academic viewpoints on the topic that whether this theory can be applied in China.This thesis holds that it's necessary and feasible to import this theory to China. It's necessary because wealth gap has been growing rapidly, life is hard for those living at the bottom of society, and news is heard constantly that rights protection fails and turns into tragedy. In some special cases, present criminal law theory seems too rigid, while anticipated possibility theory can help to realize justice in individual cases. It's feasible because old China's benevolence centered traditional thoughts provides a good living environment.Anticipated possibility theory is contained in present criminal code and juridical explanation,and it is in correspondence with policy of combining punishment with leniency.Anticipated possibility theory's systematic status, judging criterion and application scope is different in different countries. So we should absorb it with criticism instead of copying it blindly. We should absorb those factors that meet Chinese national conditions and use it rationally, scientifically and cautiously. According to the theory's connotations and functions, this thesis classifies the theory into Section Crimes and Criminal Responsibility in Criminal Law. As a result, the theory can be fully used in the process of conviction andsentencing. Besides, it provides rational explanations for justifiable defense and act of rescue,thus improving Chinese criminal law theory. Of course, any theories may meet complicated situations when they are applied in the beginning, so does anticipated possibility theory.Therefore, in order to judge whether one's action can be regarded as legal appropriateness that conforms to anticipated possibility, a comprehensive evaluation is needed, which should be a result of combining the specific situations with anticipated possibility's judging criterions, and an analysis case by case, mainly on actors, and supplemented by other criterions like national criterions.If anticipated possibility theory is imported to China, its most important effect will be in juridical practice. This thesis mainly talks about application of anticipated possibility weakening and absence. First of all, if weakening and absence of anticipated possibility is to be used to mitigate or annul one's criminal punishment, its application conditions must be met,including objective conditions and interest elements. That is to say, it is to be considered whether the situation is unusual and interest protection is necessary and reasonable. Besides,specific situations should also be taken into account, which means convicting and sentencing in accordance with the idea that the less the anticipated possibility is, the more lenient the punishment is, and vice versa.