Negation Of The Theory Of Anticipated Probability

There is no legislation stating the theory of anticipated probability in ourcriminal law, but researchers show enthusiasm for the theory, advocating using it todeal with some special cases.The theory of anticipated probability has been controversial since the day ofbirth because of the ambiguity of the concept of probability. Anticipated probabilityfirstly functioned as the super regulation of exemption but soon the role was denied inGermany. Scholars still regard anticipated probability as the super regulation ofexemption in Japan, South Korea and Taiwan, but they are affected by the Germantheory trend to some extent. The use of the theory in judicial practice was forprotection of vulnerable groups in economic decline in Germany and Japan. Wheneconomic and the social order restore, the application of the theory in cases becomesrare. Few judicial precedents admitted the theory in South Korea and Taiwan. Thetheory of anticipated probability is closely linked to the normative culpability theory.With the change of the content of the normative culpability theory and the rise ofother culpability theories, the existing and status of the theory of anticipatedprobability is deeply influenced. There is no doubt the theory is less important.Proponents of the theory in our country think it helps to social injustice,consummates our criminal theory system and responsibility theory, conforming to thetraditional legal culture and our criminal policy, and shines in the provisions ofcriminal law and judicial interpretations and judicial precedents. But to some extentthe advocators misunderstand the theory of anticipated probability and traditionalcriminal theory. We can not ignore the difference of the social background betweenour time and the golden age of the theory in foreign. Now we are in a more riskysociety, the social basis of the theory of anticipated probability already changed. Ourlegal tradition spirit emphasizes more the three cardinal guides and the five constantvirtues than human nature. Traditional views of pan-moral also hinder theintroduction of the theory. The criminal policy of tempering justice with mercy can be a substitute for the theory of anticipated probability somehow. To explain provisionsof criminal law and judicial interpretations and judicial precedents with the theory ofanticipated probability embodies the researchers’ subjective intention. There is notenough evidence to support the introduction of the theory. The current criminal lawsystem does not have the space to absorb the theory of anticipated probability. Totransform the traditional criminal law system to give the theory a role is not feasible.The so-called "anticipated probability" cases are not all belong to the scope ofthe theory of anticipated probability. We should use judicial discretion, specialprograms and people’s jury system for a reasonable verdict.