Research On The Theory Of Anticipated Possibility Application In China

Just like the west law proverb:Law can't force people to what they can't do,the anticipated possibility shows that the value of this proverb and the criminal law principle of necessity.Since the anticipated possibility was born in Germany,it has produced big promoting effect in play the role of criminal law function and criminal penalty.However,the anticipated possibility is not only exist in western criminal law,the ancient of China has the criminal policy what is about the between family members can keep silence when they crime.This criminal policy is not only have the function of maintain the order of feudal society,but also embody the value of the anticipated possibility.The anticipated possibility was derived from Germany,but it has huge different between Germany and Japan.In Japan whatever in the criminal law theory circle or in the criminal practice have the more positive attitude than Germany.Although Chinese criminal trial has not adopted the theory of probability of anticipation officially,but in practical case relevant judgments accept it to solve problems.Furthermore,what reasons that the anticipated possibility was not accepted are itself problem and the reality of China.However,we should be know that we can't bring this theory into our criminal law theory circle in a nutshell,we should pay more attention in the spirit of the anticipated possibility,Including the structure of criminal law and individual justice.This article consists of three parts—the introduction,the main body and the conclusion.The first chapter of main body,he author start with introducing the definition of the anticipated possibility,including the general and narrow definition,at the same time,this chapter make clear the connotation of the anticipated possibility from negative and positive.In the characterization of the anticipated possibility is the external factors what is objective.Secondly,the first chapter introduce the process of beginning and develop.The anticipated possibility have different place in Germany and Japan.In the end,this paper introduce the simplicity embody in ancient and modern China.The second chapter of main body introduce the factors which can impact the judgment.The main standard of judgment are the perpetrator's standard,the average person's standard,the country standard.However,which standard is best to judge is full of controversial.The paper think that the standard should by the main of perpetrator and complementary by the expectant.In the problem of the anticipated possibility mistaking,there are four types of mistaking and four ways to solve this problems.The standard of judgment and mistaking of the anticipated possibility are very important for us to adopt this theory and use it to solve difficulty problems.The third chapter of main body is focus on analyzing the disorder and feasibility to adopt the anticipated possibility.Most of scholars are agree the value of the anticipated possibility,they think it will promote the step forward of Chinese criminal law.However,some criminal law scholars have different opinions,they think the anticipated possibility is conflict with the present chinese situation.They objects to this because the anticipated possibility have the problem in structure and may strike the system of current criminal law.When we are facing the anticipated possibility as imported goods,we must take consider the into advantages and disadvantages.At the same time,we should admit that it is useful to help rebuild the structure of china criminal law.The fourth chapter of main body introduce the range of application firstly.In another words,it means that the anticipated possibility weather can be used as a super-law ground for the elimination of responsibility and exist in calculated crime or not.Furthermore,this chapter come up with methods how to apply it in detail.Including putting the anticipated possibility into Criminal Law and as the discretionary circumstances of sentencing.This paper also come up with building the system of expert witness and public judge.