Discussion On The Position Of Anticipated Possibility In China's Criminal Law

Since 1990 s,the criminal law circles of our country have researched and discussed a lot on the theory of anticipated possibility in Germany and Japan.There are many opinions about the survival path of anticipated possibility in our country's criminal law,but it seems that the anticipated possibility which is full of human care does not arouse the attention of our legislators and judiciary.Does it mean that anticipated possibility is insignificant in our country even with the spirit of “the law is not difficult”? What is the relationship between anticipated possibility and the criminal law of our country? Exploring and analyzing the identity of anticipated possibility in our country's criminal law is helpful to solve the application problem of anticipated possibility which has puzzled the academic and the public for a long time.It is of great significance to the legal and reasonable settlement of cases,the rational evaluation of law and the enrichment of criminal theory especially the theory of anticipated possibility.In this paper,I am gonging to introduce the theory of anticipated possibility in Germany and Japan,explain the rationality of anticipated possibility,and summarize the connotation of it.Then I will sum up the research on the possibility of anticipation in our country and clear the focus of controversy.In the last part,I would like to analyze the concept of intention,negligence,force majeure,etc.,explain the relationship between anticipated possibility and these concepts,and restore the role of anticipated possibility in criminal theory system and criminal law in our country.Although the word of anticipated possibility is exotic,the idea is not new.Because this term completely covers the freedom of choice in human's mind,it has the overall evaluation function of freedom of will.Since the occurrence of the case of "the horse with bad habit",the German theorists had discussed the possibility of anticipation with the overall vision.The theory of anticipated possibility constantly improved after the efforts of M.E.Mayer,Frank,Gordon Hugh Mitter and other scholars.As a consequence,the normative liability theory with the core of anticipated possibility became a highly sought after accountability theory because of its substantial rationality.According to the theory of normative liability,to make the illegal acts which have conformed to the constitutive requirements assume liabilities,it is necessary to confirm the existence of the possibility of anticipation in addition to the ability to responsibility,intention or negligence.The anticipated possibility expresses understanding and respect for human nature,it should be considered as a factor in conviction and sentencing due to its strong vitality.The concept of anticipated possibility is concerned with the psychological possibility that the actor has when the action is being made,and it has two connotations: first,the judgment of the possibility of anticipation is based on the freedom of body and the understanding of the results of the illegal act,if the actor is physically restricted or not aware of the illegal results,there is no necessity and possibility to discuss the possibility of anticipation;Second,anticipated possibility has such functions: the possibility of anticipation exists,the actor may constitute a crime,if it does not exist,the actor does not constitute a crime,and the size of anticipated possibility can also affect the size of criminal responsibility.Although there is no word of anticipated possibility in our criminal law,regulations which reflect the thought of anticipated possibility do exist,such as self-defense,emergency hedge,etc.,but accident and force majeure have no relation to the possibility of anticipation.Also,anticipated possibility is not an essential factor of the capacity of criminal responsibility.However,the ability to identify and control which a person under 14 or 16 has can be an objective factor that affect the anticipated possibility.Just because the criminal law has completely excluded such type of people,there is no need to judge the possibility of anticipation of actors who are under 14 or 16.The possibility of anticipation plays an important role in the system of constitution of crime in our country,and it is a kind of invisible existence.Anticipated possibility has been quietly in the subjective aspect of the crime constitution system of our country,which regulates the subjective aspect of all crimes together with intention and negligence(except omission negligence)but is independent of intention and negligence.Since there are few situations without anticipated possibility,it is convenient to confirm the existence of anticipated possibility through the judgment of the non-existence of anticipated impossibility.The reasons of crime exclusion which contain the anticipated impossibility are not part of the system of four elements of crimes.In fact,it is a simple way to deny the establishment of four elements of crimes.The strong conviction and sentencing function of anticipated possibility determines that it can only be stipulated by law,and the impossibility of uniform of the judgment standard also makes legislators' choice necessary.However,it is clear and sure that the psychological oppression caused by the impossibility of anticipation should take the helpless predicament that the actor faces as a condition,this helpless predicament is decided by the abnormal factors with legitimate influence which come from the comprehensive judgment after the consideration of external conditions such as the objective environment,the ability,and the behavior of others,etc..