Research On The Application Of Expectation Possibility In Chinese Criminal Law

As a theory of criminal law philosophy,the theory of the expectation possibility was originated in the famous court decision of faulty horse made by German court in 1897,then gradually got ripe development in the theory of criminal law of the traditional continental law system,and has been widely used in criminal practice of both Germany and Japan.There are the broad sense and the narrow sense in the the connotation of the expectation possibility,whose key difference is that people have different understanding about the specific circumstance of that the actor implements the concrete behavior evaluated by criminal law.The connotation of the expectation possibility which we usually say generally refers to its narrow sense.There are very rich and profound theoretical foundation in the expectation possibility,whose value orientation and spiritual connotation fit the basic reality of human life greatly.However,if we want to judge whether there is the expectation possibility or the degree of its existence,there are three different theories which can illustrate them,such as the theory under the standard of behavioral man,the theory under the standard of average man and the theory under the standard of nation.Each theory has its own advantages and disadvantages,but the theory under the standard of behavioral man is mostly in line with its value.So the comprehensive standard with the main content of the theory under the standard of behavioral man is more appropriate.The theory of the expectation possibility,as the theory of criminal law philosophy,is rooted in the criminal law of the traditional continental law system,whose contents consist of three classes,which are the conformity of constitutive elements,illegality and responsibility.But in our country,the content of four elements which consist of the criminal object,the criminal objective aspect,the criminal subject and the criminal subjective aspect is the theory of criminal constitution.Therefore,when introduced into our country,the expectation possibility suffered the embarrassment of lacking suitable location.But due to the great value connotation and the great influence of universal value of the expectation possibility,it not only affects the judgment of guilty and innocence for the actor,but also has a profound impact on his sentencing.So it has been applied in our country's conviction and sentencing invisibly,which is embodied in the general principles of the criminal law,the specific provisions of the criminal law and the criminal justice practice in our country.But there is also violation which we need to modify.At the same time,we should see that there are a lot of misconceptions about this application invisibly and we need to correct them.Because the circle of Chinese criminal law lacks the survival soil of the theory of criminal constitution whose contents consist of three classes,where the theory of the expectation possibility is rooted,the introduction of the theory of expectation possibility need be very cautious,which not only embodies the profound connotation which can't be violated,but also abandons the mechanical practice that it is absolutely and wholly transplanted to our national theory of criminal constitution and the provisions of our national Criminal Law.Based on this,the wise act should be that we put the reasonable value orientation and the reasonable spiritual connotation of the theory of expectation possibility into effect in our national Criminal Law.We should try to tap its macro guiding function and reference function so that it can be flexibly reflected in many details of our national legislation and judicature in crime.Focusing on the application of expected possibility in Chinese criminal law,this paper firstly formulates the content of the theory of expected possibility systematically.Then this paper makes a macro description of the general situation of the application of the expected possibility in Chinese criminal law.Afterwards,this paper introduces and reviews emphatically the application of expected possibility in Chinese criminal law from three aspects of the general provisions of the criminal law,the specific provisions of criminal law,the judicial practice.Every aspect comprises positive side and negative side.Finally,according to the application of all aspects,this paper proposes the improved direction.The innovation of this article is that the application of the expected possibility in Chinese criminal law is formulated systematically followed the logic from abstract to concrete,from the macroscopical to the microscopical,from theoretical to actual,from the general provisions of the criminal law,the specific provisions of criminal law to the judicial practice:it analyzes the decision principle of the expected possibility for crime or non crime,heavy offense or minor offense in detail;according to our-national case of criminal law,it not only introduces the contents that the matter whether the expected possibility has,and the relation between the matter and the causes of anti-crime,but also analyzes the contents that the matter what size the expected possibility has,and the relation between the matter and sentencing;finally aiming at the problems mentioned above,it proposes the improved programs.Through reading this paper,the readers have a more profound and specific understanding of the application of the expected possibility in Chinese criminal law.The practical suggestions to improve the application of the expected possibility in Chinese criminal law proposed in this article are extremely scientific and feasible.