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Anticipated possibility in criminal law

                     The criminal law (a) -- the beauty of

Cheng Jie*

Http://www.fatianxia.com/blog/44825/

[Abstract] from the beauty of this unique angle of view, analyzes the theory of anticipated possibility in criminal law theory in continental law system, the connotation, the development of this theory and the status is described from a plane.

[Key word] expected possibilityBeauty

One, introduction

   See the world in view of the unity of opposites, everything in our life can be divided into relative surface. The heavens and the earth, the beautiful and the ugly, black and white, good and evil. From this perspective, the provisions of Criminal Law -- crime, criminal responsibility and Penalty Law -- both criminal law provisions, or the theory of criminal law, in many ways, there are relations of the unity of opposites such, it is the relation of unity of opposites such provisions of criminal law and criminal law theory to reflect the value of beauty.

   The criminal law because of its crime, criminal responsibility and penalty for the content, is bound to give a rigorous, terror and gloomy impression, the near modern criminal law and the concept of value is inherent highlights from time to time to convey the human care. In this one, the theory of anticipated possibility is an outstanding.

Two, the anticipated possibility -- the connotation of inner beauty

   Anticipated possibility, refers to the specific circumstances at the time of action, can expect acts are not illegal, and the implementation of legal acts. Only when a person has the possibility of expectation, will it be possible to make the condemnation of human behavior. If you can't expect that actor implement appropriate behavior, also does not exist the possibility of the condemned.

   As the criminal law theory of probability of anticipation, is originated in the court German Empire in March 27, 1897 "addiction to Ma case" case. In this case, the court exempted from liabilities of the parties of the reason, can't expect to lose their work behavior cost, in exchange for refusing to continue driving the vice of ma. After that, due to the rise of science of criminal law responsibility theory, was the case as the origin of the theory of anticipated possibility.

In fact, from the look of the inherent possibility theory value view, western very early some syntactic proverbs can be used as the origin of the theory of intrinsic value: Lex non cogit ad impossibilia; Lex neminem cogitad impossibilia, the law does not impose, in particular, as the law does not force impossible matters or the law does not impose any performance matters shall not possible.

   The law is the rule of law, people's behavior is the principle. The ancients cloud:"Nothing can be accomplished without norms or standards."[1]However, this rule, must have a rule, certain methods and mandatory, otherwise, the rules will not play a role in its condition. As a crime, criminal responsibility and penalty of criminal law is concerned, its command and mandatory is very obvious, "give a person not speak and not reason sense. But the essence of the world is One divides into two., as surface Harsh Criminal Law, which also reveals the weakness of humanity's understanding and concern. Just as some researchers said in a commentary: "look forward to look forward to the possibility of examining possibilities for a new perspective of behavior from the perspective of human nature, human nature highlights the value in the theory of criminal law, the criminal law showing a softer side."[II] "The law does not impose" is the criminal law rigid harmonic. In the opinion of the author, and highlight the value of beauty is in criminal law, international relations and the relationship between beauty and ugliness mutual set off, it is to let people taste infinity.

Three, the anticipated possibility in the science of criminal law theory of beauty -- system

   As we all know, the theory of criminal law in the theory of anticipated possibility originated in the court of the German Empire "hobby horse" case case, after 100 years of development and different criminal law school debate, the theory of anticipated possibility has been developed quite mature in the continental law system and the criminal law theory plays an important role in the. The reason, the theory of criminal law in continental law system has such a high position in the frame, and the theory system of the criminal law on the crime is inseparable.

   The theory of criminal law in continental law system in the criminal theory framework and our different. The constitution of crime is the three elements, namely, the constituent elements of a compliance (ill), illegality and liability of three parts. These three elements together, on the formation of the concept of crime: crime is consistent with the elements of the (ill), illegal behavior, responsibility, or the crime with the constituent elements of a compliance, the responsibility of the illegal behavior.[3]From the perspective of mutual logic of three factors, three form a judgment model of a dynamic, and progressive, is a behavior should constitute the crime must first meet the requirements should be. And this is one of the constituent elements of a compliance (ill) is a general, abstract, standardized, objective judgment.[4]On this basis, to review whether the act is illegal. Illegality is an individual, specific, amorphous, objective judgment.[⑤]Finally, in the first two elements are in line with the premise, to investigate whether the actor has the responsibility. Accountability is an other, specific, internal, subjective judgment.[6]After the three elements of the layers of screening, whether an act is a crime of criminal law norms is very clear, this screening is done in the subtraction process, its dynamic clearly visible.

   The anticipated possibility and humanistic care and warmth in the theory of criminal law is considered and responsibility, intent, negligence are included in the liability. This is a kind of criminal law and the theory system of the United States, in determining whether a behavior is crime -- this work be no trivial matter. -- accordingwithconstitutive requirements (deserve) and illegality as an objective judgment, it is a kind of fact judgment, without the basis of the effects of these two factors, not may be a behavior easily for the crime, and accountability is a value judgment, or is a subjective judgment, this factor compared to the first two elements, more flexible and subjective. From general to specific, from the abstract to the concrete, from the outside to the inside, from setting to the amorphous, judging from the objective to the subjective, the fact judgment to value, this ring a ring core link, constitutes a crime the civil law framework. However, the anticipated possibility in the liability factors, compared with responsibility ability, intention and negligence, it is more subjective and arbitrary. The judge in applying the expect possibility theory judgment, can better embody the subjectivity, initiative and discretion of judge judicial adjudication. At the same time, it with those stereotypes, objective judgment and fact judgment factors than, give the ability for social complexity of the criminal law practice. Expected possibility and advocates, the criminal law in a rigid and strict at the same time, joined by a flexible factors, theory and practice of criminal law also demonstrated the vitality.

Four, the anticipated possibility in criminal law theory in the development debate -- the beauty of

   Anticipated possibility, generally considered to include in the responsibility of the elements. But the determination of liability elements of the reason and the responsibility of the elements in the position to have arguments, a beautiful development process this great debate theory in criminal law, constitute the skeleton of the development of the theory of anticipated possibility.

   For the possibility of the responsibility of the elements? There are four main points: 1, impediment of responsibility said. (the theory when the external fact conforms to the general case, is able to look people determined to carry out legal behavior, although can expect to implement appropriate obligation, behavior is determined to carry out illegal behavior, in violation of the norms of the decision to attack was possible, on the contrary, when the external it is unusual circumstances determined to carry out legal action has become impossible, not be responsible criticism, liability is hindered. This is now a German general.) 2, the reasons that the fact of forgiveness. (by the German scholar Kauffman (Kaufmann) initiated by. Thinks that the anticipated possibility in responsibility areas of discussion, at this time, as a purely relational "rebuke probability" substantive "responsibility" is a measure of the difference between "condemnation", with each concept is that the criticism, the possibility of means limited to non existence of various elements difficult (Zhu Qianti) no relationship, and in fact shall give criticism and blame the severity. He thinks, as a rebuke probability of no value, confirm the possibility of knowledge elements - the obligation, and the formation of meaning ability enough situations exist or not become a concept according to the awareness of the obligations. As the possibility for such occasions with disapproval, become the problem of non degree first. The responsibility of criticism, in specific cases is practical, namely legislation or the court decision basis in fact, nor can not increase any minor facts. Like this can be forgiven occasions, despite the presence of rebuke probability, but should not be blamed.) 3, should blame resistance said. (this is the German scholar Mallah (Maurach) advocated, he thinks, imputation possibility is to condemn and responsibility concept, that is to say, the perpetrators with illegal elements of behavior, usually is not evaluated as no value judgment. Responsible criticism, the criminal law effect is not all human behavior, is only for the expected implementation conforms to the specification of the behavior of. However, because the condemn must have responsibility, means that the burden, so, when the objective situation should not interfere with certain motive formation conditions, from the behavior of people must have the responsibility, can certainly exist behavior should be condemned. This should be condemned, if it is from the ordinary people may be presumed, then from the basis of human behavior. Judgment on this responsibility, the responsibility should be blamed is higher than that in essence, responsibility should include the blame, condemn basic existence beyond the simple negation based on average every request, become the requirements for specific behavior of the anticipated possibility does not adapt the non judgment basis of liability. So he thinks that the anticipated possibility of metastasis from field to field behavior of human behavior, looking forward to (not) the possibility of legal regulation, according to the method of standardization, be of type, with individual non judge different, such as emergency behavior problems, not for personal criticism is not a general the corresponding action on the behavior of general evaluation, therefore, is the legal recognition to the existence of a state of emergency situations, the right is the corresponding when blame nature resistance, without ability of responsibility of a state of emergency, can invoke is hindered condemn.) 4, regulation theory. This star is the German scholar Hackl (Henkel) advocated, he thinks, expected possibility and impossibility as expected responsibility standardization in a pair of opposite concepts, theoretical research is summarized. According to the theory, the possibility of expectation is elements in criminal law as responsibility concept understanding is correct. However, the anticipated possibility appeared in the field of application and its performance evaluation is too small, the phenomenon of excessive. This concept has the characteristics as auxiliary means in the legislation and judicial, civil law, administrative law, police law, international law and other fields are in use, therefore, the theory of anticipated possibility should be the regulation principle of all methods in the field of. But the principle itself does not reveal the content of judgement, but only in the case that decided to clear the legitimacy and law obligations are not well-defined way. Therefore, look forward to the content and value does not have the possibility of standard value, because it has no value, so do not have the normative and the functions of the case. He thinks that the anticipated possibility is the responsibility of the elements, from the previous super regulations obstructing liability matter, the thought is not only ignored in determining illegal content in responsibility, on the other hand, because only limited to confirm their ideas as a deterrent punishment standard status, and the evaluation of its significance, therefore, shall confirm the anticipated possibility as the limit of function principle of regulation. Mayer also hold the same view with hecker.[7]

   The anticipated possibility in how accountability elements in the position? There are elements of liability, negligence and intentional said, intentional, negligence liability resistance factors and independent but the reasons that the three views.

   I have no intention to look forward to in the development of the possibility in theory in the view of detailed list, but only hope after such simple induction, found this theory in many polemics such, continuous improvement and development, showing a debate of the United States, it is many scholars debate and analysis for this, we revealed to humanity theory have a more clear understanding and knowledge, it is with these arguments, we have a goal and direction in the pursuit of truth, also make us in the stern and serious criminal law to see behind the warmth.

Five, to reflect the possibility in the China in Criminal Law -- the beauty of different approaches but equally satisfactory results

   The theory of anticipated possibility, although originated in the "hobby horse" case case, the scholars debate in civil law countries and clear, however, that highlight the human warmth of the theory of human understanding of the world in the process of the common cognitive, rather than criminal law theory in civil law exclusive.

In ancient Chinese, Confucianism has always advocated concealment, the Han Dynasty to create a "kiss of the first Punic" system, the perfection of "mutual concealment" system, after successive roughly followed the Tang code. The idea of concealment is the legal system, while according to the existing, rooted in the most basic human affection poured humanity ultimate.[8]

   In our current criminal law, article thirteenth of the criminal law, article thirty-seventh and article sixty-first, are saturated with the value of expectation possibility theory. Article thirteenth of the criminal law provision, plot remarkable slight harm not big behavior, not be considered a crime; the criminal law thirty-seventh stipulation, the crime are minor and do not require punishment, can be exempted from criminal punishment; criminal law sixty-first stipulation, when deciding the punishment of a criminal element, should be based on the facts of the crime, the nature of the crime, the plot and the the degree of harm to society, to the relevant provisions of this law.

   We often say that the law be just and stern, law reflects the will of a ruling class. But whether it is Chinese ancient idea of concealment, or Chinese "proviso" in present criminal law, whether the law is how to be just and stern, regardless of who did the will, law in the face of human nature and the family the most basic demand, have chosen to the human nature and the affection of the compromise, this compromise fundamentally in fact, is the embodiment of human nature weakness. But it is such a compromise, so that the original cold hardened criminal law, into the warm.

   However, seen from Chinese ancient and current criminal law in the theory of anticipated possibility, this point of view, although no such as the formation of the mainland legal system country criminal law theory that perfect system, but still with at this point have different approaches but equally satisfactory results and wonderful. From this point of view, no matter what the laws of the country, although its form is different, but in the core legal value of this level is the same.

Six, the anticipated possibility for reference in China's criminal law theory of beauty -- Digest

   The above mentioned, whether ancient legal thought Chinese or criminal law norms, are more or less there is a microcosm of the anticipated possibility theory. But it is undeniable that, due to historical reasons, framework of theories of criminal law, the theory of anticipated possibility in the theory of criminal law in our country is not the system. Over the years, about the theory of anticipated possibility is to introduce China's criminal law theory system and how to introduce the status and the controversy has not been stopped. In my opinion, this is a manifestation of the collision of western legal culture and thought and penetrating, reflected in the science of criminal law together beauty.

   No communication, any theory is only a pool of stagnant water. No reference, any theoretical framework is only behind closed doors. But in reference to the time, also cannot persist in wilfully and arbitrarily, in defiance of China's criminal law theory itself, the end can only make the humanity theory, The climate does not suit one., what's more, causing chaos theory in the criminal law of our country. The above mentioned, possibility theory of criminal law in continental law system has such a high position in the framework of look forward to, and the theory system of the criminal law on the crime is inseparable. However, the current crime of our country on the core of the system -- the theory of constitution of crime -- is the four elements, said to be quite different and the three elements theory of continental law system. When introducing the theory of anticipated possibility, how to arrange its position in the criminal theory system is an important and difficult problem. The reconstruction of the existing crime constitution theory, or will the theory of anticipated possibility into crime constitution theory and related theories to? It is worth our consideration. However, the author thinks, possibility theory in our criminal law theory expectation is necessary.