Reflection And Reconstruction Of Foresight Possibility In Criminal Law

Anticipated Possibility has always played an important role in the theory of negligence,and with the introduction of the new theory of negligence,the academic community has re-examined the theory of negligence and put discussions regarding the anticipated possibility on the agenda.In traditional theory,the anticipated possibility is positioned within the subjective responsibility category as a substitute for the breach of anticipated obligation.The confusion between the anticipated possibility and the breach of anticipated obligation reflects the lack of exploration of the anticipated possibility in the theoretical community.As Lao Dongyan proposed,regardless of adopting the new theory of negligence or the old theory of negligence,both will face the problem of repositioning the anticipated possibility.This article starts with the connotation of the anticipated possibility in criminal law and discusses the system positioning,object,degree,and capacity of the anticipated possibility.The basic viewpoint of this article is that pure subjective elements are the internal psychological activities of human beings,which only change with the transfer of subjective will.The dispute between the standard of the actor and the standard of the ordinary person is not a real dispute between subjectivity and objectivity.Even if the standard of the actor is adopted,it is also inferred based on the physical and knowledge experience of the actor,not determined by the subjective will of the actor.Article 15 of the Criminal Law stipulates that "if one should have foreseen that his act may cause harm to society but has failed to do so due to negligence,or if he has foreseen it but has relied on the belief that he can avoid it and as a result,the harm occurs,he shall be guilty of negligence." Therefore,the anticipated possibility means the possibility of foreseeing the potential harm to society caused by one’s own behavior.The meaning of the anticipated possibility is determined by its inherent connotation,and it is an objective illegal element.The anticipated possibility is not a subjective psychological response of the individual but an objective element that is essentially different from the breach of anticipated obligation.The anticipated possibility should be positioned within the attribution of behavior in the illegal category,and its relationship with the equivalent risk of illegal behavior and the typological risk is a two-sided relationship.According to the analysis and positioning of the anticipated possibility in this article,the anticipated possibility is the way out for the special cognitive problems of objective attribution theory.If there is a special cognitive possibility,then there is an anticipated possibility of harmful results,and vice versa.The exclusion of objective attribution is achieved by excluding the special cognitive possibility.The appropriate standard for the anticipated ability is a modified standard of the ordinary person.The object of the anticipated possibility is the possible results and basic causal relationship,not the specific results and causal relationship.The degree of the anticipated possibility is the ability to "foresee" and not the production of"anxiety," and the argument of danger and fear is not necessary.