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On Application Of Theory Of Anticipated Possibility In China

Posted on:2021-03-26Degree:MasterType:Thesis
Country:ChinaCandidate:W L ZhouFull Text:PDF
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The Theory of Anticipated Possibility,which is rooted in the theory of criminal law of civil law system,has attracted the attention and hot discussion of many scholars in china in recent years,in judicial practice,there are more and more cases applying the Anticipated Possibility,this is mainly due to the positive effect of Anticipated Possibility,it can make up for the deficiency of the crime function of the existing criminal constitution system in our country.Introducing and applying the Theory of Anticipated Possibility in China's criminal law,which not only coincides with the Temper Justice with Mercy in today's society,but also has a positive impact on the construction of a harmonious society.The main text of this paper is divided into three chapters.The first chapter introduces the connotation and theoretical origin of the Anticipated Possibility,and mainly expounds the judgment standard of the Anticipated Possibility.Based on the analysis of various doctrines,the author put forward her own opinions,the author tends to adopt the the compromise standard,taking average person standard as the main criterion,taking into account the actor standard.In the process of judgment,the judge uses the average person as the reference,based on the simple justice concept and moral quality of ordinary people in the society,and the actors are judged according to their objective and special circumstances at that time and subjectivefactors that can be understood.The second chapter mainly discusses the dispute about the introduction of Anticipated Possibility in China,discusses the possible obstacles to the introduction of Anticipated Possibility in our country theoretically,and cites cases to analyze the phenomenon that the application of Anticipated Possibility in our judicial practice is mixed and abused,and has the danger of becoming broad.For example,the Anticipated Possibility is judged on the basis of the ability to be responsible,the Anticipated Possibility is judged on the basis of freedom of will,the role of equating the Anticipated Possibility with that of an accessory,the use of the Anticipated Possibility for conviction,the confusion between the Anticipated Possibility and a mistake of legal understanding,applying Anticipated Possibility in a broad sense.However,based on the realistic value of expected possibility,it can be used as an element of criminal responsibility,to clarify it as the cause of preventive responsibility,and to enrich our country's crimes.Therefore,it is necessary and possible to introduce Anticipated Possibility and apply it.In the third chapter,the author discusses the legislative design and judicial advice of the Theory of Anticipated Possibility in China.Although our country does not clearly stipulate the Theory of Anticipated Possibility,it is undeniable that it is actually reflected in both legislation and justice.In order to make the Anticipated Possibility play a positive role,we must find a suitable point in our criminal law system,so the author puts forward the suggestion from legislative and judicial aspects.In legislation,the Anticipated Possibility will be standardized in the general principles of criminal law,specifically,improving the defense system and risk avoidance system in China's criminal law based on the Anticipated Possibility,and add the clause of the Anticipated Possibility after the general defense of criminal law and emergency hedging,and further stipulate the establishment requirements of the Anticipated Possibility.To take a step back,Anticipated Possibility as extralegal cause of preventive responsibility,even if it cannot be legalized in the general provisions of the criminal law,it can also be stipulated in the judicial interpretation document.Judicially,based on the idea of categorizing the reasons for the obstructionof responsibility,the author proposes two types of situations,namely,emergency hedging in the face of life conflicts and acts of hiding,sheltering criminal relatives or helping criminal relatives destroy evidence,For those who do not have the Anticipated Possibility,and there is no other clear basis to declare innocence,the innocence can be declared through the application of the extralegal Anticipated Possibility.
Keywords/Search Tags:Anticipated Possibility, Constitution of Crime Criminal Responsibility, Cause of Preventive Responsibility
PDF Full Text Request
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