| The theory of expectancy possibility,which is generally believed to have originated from the case of pima tried by the German imperial court in the second instance,has been introduced and developed by Japan,and has gained its status as a general theory in the criminal law theory of the continental law system,and has been continuously studied and applied in criminal legislation and judicial practice.However,due to the defects of the theory itself,after the second world war,the theory began to decline in the German and Japanese criminal law.Although the countries of common law system have not confirmed it in the form of written code,it is obviously applicable in relevant cases.The theory of expectancy possibility is one of the most important theories in the field of criminal law theory,which focuses on the relief of human weakness,reflects the integration of ethics and law,and is a theoretical system with profound humanistic connotations.At present,China’s penal code has not explicitly adopted the term of "expected possibility",but this theory not only plays an important theoretical role in China’s criminal theory,but also often embodies its ideological connotation in the practice of criminal justice.The first chapter of this paper starts from the theoretical source of the expectation possibility,briefly introduces and comments on the theoretical disputes related to the concept of the responsibility basis of the expectation possibility theory and carries out the theoretical and practical investigation of the expectation possibility theory outside the territory.The second chapter of this paper analyzes the legitimacy of introducing the theory of expectation possibility into China from the perspective of necessity,and analyzes the feasibility of its application in China from the perspective of reality.Since the theory has been excluded from the local question,then we should clarify the application of the theory in our country.However,at present,there is no consensus on the local application of the theory in the academic circle and the application in judicial practice.Therefore,in order to better improve the theoretical system of criminal law in China to improve the theory of crime constitution in China and to promote the specialized work of China’s national judicial organs,it is undoubtedly necessary to study the application of the theory of expected possibility in the judicial practice of criminal law.The third chapter is the key chapter of this paper,which discusses the construction of the localization path of the theory of expected possibility into judicial application.In the process of expecting the possibility theory to be applied in the judicial practice of criminal law in our country,we should first grasp the three key points of application,that is,to change the traditional value of criminal law in our country;Clarify whether the theory of expectation possibility is subjective or objective and whether the expectation possibility is universal or specific.It also depends on the improvement of judicial professional ethics.Then the paper discusses two problems that should be considered in the application of the theory in Chinese practice.The other is to notice that the application of the theory of expectation possibility not only has the problem of whether there is or not,but also has the problem of the degree of the degree.Finally,on this basis,the author tries to design three specific ways to localize the application of the theory of expectation possibility.The second is to try to construct the localization path of expectation possibility theory in the aspect of sentencing;Third,the theory of expectancy possibility can also be used as the cause of guilt in general criminal cases as the cause of exemption of responsibility,and can also be used in death penalty cases to combat the application of the death penalty,so as to better implement China’s death penalty policy of retaining the death penalty but restricting and controlling the application of the death penalty. |
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