In continental law term possibility theory on

Liu Peng
"Forum" in 2006 the first phase of contemporary law
Author brief introduction: Liu Peng, male, born in 1957, 1983, graduated from Southwest University of Political Science and Law in July, is now the vice president, Guizhou Police Officer Vocational College law professor, master's tutor. The main social part-time: minor vice chairman of the Committee of legal education China Criminology Research Association, director of the criminal law research China law society, standing director of Guizhou law society, Criminal Law Research Association, the Guizhou Provincial People's government legal expert advisory committee, Guizhou Provincial Academy of Social Sciences Institute researcher of engage by special arrangement method. Research direction: criminal law, criminal law academic achievements: have published, editor, textbooks, a total of 10 academic essays, complete province level topic two items, two items in the study, in the above the provincial level publication articles published more than 40 professional papers. Results in two, won the three prize of Guizhou Province excellent achievements in philosophy and social science, a won the four prize, a won the two prize in Guizhou Province Public Security strengthening police by science and technology award.
    Abstract: the possibility of expectation is refers to a certain behavior, to determine the criminal responsibility, must be for the behavior people to look not to the behavior, and other legal acts. In continental law system, the theory of anticipated possibility since its inception has been developed into a theory of great vitality and charm, but still in the legal nature, the standard expected possibility and controversial. Introducing the theory of anticipated possibility will lead to a revolution of criminal law theory, but also has great significance in the criminal law practice.
Keywords: Civil Law The anticipated possibility Review
    The theory of anticipated possibility in early twentieth Century, is generally believed that it originated in the court in March 23, 1898 fourth criminal Department of the German Empire "Mawei around the habenular case" of the case, the case was announced, soon caused widespread concern in the German criminal law, scholars in this case have written, in theory tries to seek in accordance with the breakthrough, one of the most influential such as Meyer's "responsible behavior and species" (published in 1901), Frank's "concept of liability form" (published in 1907). Meyer as standard responsibility of creative persons, pointed out: the factors of liability in psychological factors, there must also be "rebuke probability". Frank also pointed out that: at that time that would be the responsibility of the nature as a mental factor is not appropriate, "responsibility" is in addition to psychological factors outside, still must take "responsibility" and "normal attendant circumstances of" is a compound concept elements. And the most important elements, he thinks is the responsibility of the "collateral state normal". Here the so-called "attendant circumstances of the normal" that is anticipated possibility. It is generally believed that Frank is the theory of anticipated possibility founder. Later, a group of German criminal law experts on the basis of further development and promotion of this theory, so that gradually forming, mature, and soon spread to japan. After the Japanese scholars' promotion, caused a great impact in Japan, and further in-depth study, has recognized the Japanese criminal law academic circle and the practice circle. The theory also is greatly respected in the Taiwan area of our country, in the continental law system countries, particularly Germany and Japan and other countries has become a great vitality and charm of the theory.
Meaning and rational evaluation, the possibility of
"The possibility of expectation, but for a certain behavior, to determine the criminal responsibility, must be for the behavior people to look not to the behavior, and for other legitimate act of. That is according to the specific behaviors that can be expected, if the person not to commit a crime, and other legal acts, which was in violation of this expectation, criminal actors, the criminal liability is. Therefore, if the lack of such a possibility, impossibility to look forward to, and become the subject negates the responsibility, that is not the criminal responsibility of the person." (1) the anticipated possibility, seen from the background, core or essence of the theory is that "the law does not impose", when a person is in distress, external circumstances forced him to carry out illegal behavior problems, or it is difficult to select proper law, the choice should not be condemned, even their actions are consistent with the crime tenable condition in form, should not become the object of criminal accusation, or at least, be given a mitigated punishment on the.
People often say that "France", when the law and affection can't be, the only choice is to act in accordance with the law, the so-called "the law, be strict in enforcing the law, illegal". On the judicial point of view, this proposition may be blameless, the problem is, the formulation of laws, the legislator should consider how to reduce and prevent the conflict between emotion and law, i.e., how to consider the "law to love" this proposition. The formulation and implementation of the criminal law, should reflect the spirit of humanity, if a person to depart from the left in the case of the intention to choose the illegal act, and bear the burden of criminal investigation, it "is in and the human back, in the manufacture of national and legal feud." (2) the criminal law as a form of "evil", to get the understanding and loyalty, make the society to tolerate this "evil" exists, we must constantly on the legitimacy and rationality of torture, the performance as "evil" criminal law "the premise and the factors including good". {3} Japanese scholar Nishihara Haruo said: "the criminal law is the result of the severity of 'necessary evil', we have to study the rationality of its existence and the normal, our national because a rationality and necessity is not legal, but in daily life is limited, when the law was sentenced to a criminal punishment, important interests are infringed, and was a prisoner of the brand, all of this unbearable." (3) China scholar Professor Chen Xingliang pointed out: "the criminal law is to regulate people's behavior as the content, any kind of criminal law, only to establish the scientific hypothesis of human nature, its existence is rational and applicable nature." (4) is based on this, the Japanese criminal jurist Otsuka Hito made the following evaluation of the theory of anticipated possibility: "the anticipated possibility is to breathe in the face of the powerful state law expresses his criminal law at the national's tears of sympathy theory." (5) all the science and humanity are always more or less some relationship, any subject whatever seems and humanity how far away, they will always by this or that way back to humanity. (6) the possibility of rational regression, no doubt for the criminal law provides a way, so that we say, deep concern for human nature, is not only the expected possibility reasonable existence basis of ethics, but also is the most important value.
The theory of anticipated possibility value lies not only embodies the humanitarian principle of criminal law, fully expressed the respect of human nature, and it caters to the criminal contract, after implicit rather than a value position, the front. The modern criminal law theory of criminal law in the very advocate intervention in social activities of humility and suppression, restraining principle of criminal law in addition to minimize the pursuit of criminal startup cost, maximization of economic benefit of the criminal law, the more important point is inhibited countries may be expanding power of punishment. A society, if everywhere is full of criminal law's tentacles, the results will inevitably lead to the abuse of the crime and the penalty, which makes it difficult to get the psychological identity of the public, to cultivate the public loyalty to the criminal law, the criminal law only as the ultimate means, the weakness in other ways or invalid, before the use of criminal law power, the theory of anticipated possibility is consistent with the spirit of the criminal law, it not only makes the expectation can not be justified on the grounds of punishment annihilation, the expectation value is not the case be mitigated criminal matter, thereby greatly inhibited the penalty power expansion, played a "safety piston function" of reality and legal regulation of positive friction (7).
Two, look forward to controversial issues exist possibility theory
The theory of anticipated possibility in early twentieth Century, because the whole theoretical system of criminal law appeared later, so there are many disputes, these disputes or different views mainly around the following issues:
(a) the legal nature of the anticipated possibility
The legal nature of the expectant possibility, is when the anticipated possibility lack or expect the impossible, the situation can become a super law responsibility without reason, scope of use or only specified expressly in the criminal law? For this problem, there are two different opinions: the German criminal law scholars generally believe that, it should be on the application of the theory of expected possibility to limit, the limit is only in the criminal law has stipulated the occasion, the lack of the anticipated possibility is the grounds for exemption confirmed. If the breakthrough of criminal law range use this theory to deny responsibility, will produce no principle understanding and forgiveness, leading to the responsibility of non emptiness, and even the tendency will be the pan moralistic, is not conducive to unity and scientific nature of criminal judgment. {4} accordingly, Germany's criminal legislation to implement this proposition, as early as in Germany in 1925 and in 1927 the draft law, embodies this idea, and in 1973 October implementation of the new German criminal law thirty-fifth first is clear: "to avoid life, themselves or their close relatives or other the close relationship between the body and free the experiences of his method of dangerous unavoidable, illegal act for, do not constitute a responsibility. According to the situation of human behavior, such as self dangerous, or have a special legal relationship, can look forward to their experience distress, this provision does not apply to." In this regard, the Japanese criminal law scholars hold different views, the general will be looking unlikely explanation for the general super law exemptions, because "the legislator and the substantive law is not a panacea, the statute is not possible without missing a responsibility obstructed, so despite the lack of provisions of the law, but considering the specific situation of anticipated possibility of lack of legal acts, whether intentional crime or criminal negligence should recognize the responsibility to hinder." (8) in addition, the possibility of a lack of negative responsibility, the defendant unfortunate liberated from the fetters of responsibility, is also in line with the defendant's criminal judicial justice, does not violate the principle of legality of the spirit. The "expectation possibility does not exist negative criminal responsibility to the grounds of theory of criminal law, is not based on the plaintext, and should be interpreted as a so-called super regulations of the impediment of responsibility". (a 9) Showa 31 years the Japanese Supreme Court judgment, also have such verdict: "to the anticipated possibility does not exist as a reason, and deny the theory of criminal responsibility, is not only the basis of criminal law expressly, and should be interpreted as a super regulations obstructing liability matter. Therefore, the original judgment not express according to its rules, while it according to the order, though this theory when no different, but not that the illegal." 10.
On the above argument, also exists in the field of criminal law in our country, if not conclusive suggestions: expected possibility is a super regulations obstructing liability matter, will not help the legal construction of our country. In our judicial credit is not high, the possibility to exceed regulations obstructing liability matter, the weakening of the criminal law is not the main problem, easily lead to the tyranny is the most realistic problems, this is very terrible and must be resolutely put an end to. {5} and certain commentators pointed out: negative theory of anticipated possibility ban considered obstructing liability in the law, that only on the basis of the law to determine the obstructing liability situation. This view is actually lay in the legislation itself has self perfection faith foundation, too much reliance technology and ability of legislators. However, the fact that the legislative, the attention is focused on how to make the crime without any omission to detailed rules, as for obstructing liability situation is not the legislators focus. The {6} note is sure of that expected possibility in application beyond the law, at the same time, also stressed that China's current judicial environment and the quality of judicial personnel should be strictly applied based on. Here the so-called "strict", should be understood as strictly control procedures, such as the past in our criminal law on the analogy of the restrictive provisions, the present criminal law about the discretionary mitigated punishment control legislation, can be used to design the application possibility of looking beyond the law, reference.
(two) the standard expected possibility
The criterion of the anticipated possibility, refers to what the anticipated possibility as the standard to judge the behavior person has legal behavior, also is in the specific case of what to what to judge whether there is according to the anticipated possibility, the responsibility and to determine the size of the non. Due to the specific identification of anticipated possibility operating problems according to size, a debate is intense, different opinions, sums up the general include: the standard of behavior or personal standards that said. Should be the behavior of people's own capacity, the specific conditions and behavior at the time, analysis and evaluation of the ethical, whether it is worthwhile to reproach morally, to judge whether the actor has the possibility to implement other lawful behavior. The average man standard, or social standard. To advocate social general artificial standard, according to the average social understanding ability and can judge of anticipated possibility of No. Method standard specification, or national standard. It is the negation of the former two theory, thinks that the anticipated possibility standard is not the behavior of people, also should not go to look at the average person, the standard should be established on the basis of the legal order of the state, to the national laws expected behavior to comply with the provisions of the law behavior as the requirements of the standard.
Most Chinese scholars of law standard negative attitude, the two theories have different certainly, also somebody puts forward comprehensive standard, think of anticipated possibility of no consideration should be given to human behavior standard and average person standard. How to take into account, but also have different views. Some people advocated to conduct standard, the average person standard, some people advocate with the average criterion mainly, the behavior standards. There was the first to consider, behavior standard and average person standard, in a few cases, but also refer to the national standard. The reason is the theory of expected possibility would pursue, behavior standard that is appropriate, because the creation of anticipated possibility to the harsh environment of those who are unfortunately in some specific in the people, from punishment to rescue but, if the behavior standard, the result will be allowed to understand everything, in all, the responsibility judgment becomes impossible, and too much randomness. It should be based on subjective, personal facts as the basis, according to the average person in behavior status of the judge, so as to balance between general justice and individual justice. At the same time, as the Japanese scholar Kimura Rji said: the person is not an isolated life, but living in a society which is sure to set and a was determined to establish state, this makes the behavior must accept some compulsory and can not reduce the commitment to the compulsory liability. So, in some cases, should also be based on the national standard that there is no possibility. The {7} analysis has its rationality, deficiencies in the standard too much, easy to cause the confusion of judgment and senseless disputes, and may lead to inconsistent application of. This view is put forward based on the anticipated possibility: due to special case, and its purpose is to put the bad environment in some specific in those unfortunate people out of criminal penalty save, judging of anticipated possibility of no self, to conduct standard as the basis, only when the behavior standards do where there is a clear violation of social justice, to consider the average person standard. As for the national standard, in principle does not consider, but not completely excluded, namely when the behavior involves significant national interests, can be determined by the national standard, such as a list, soldiers in the war, should not be exempt on them because of the fear of death to wander behavior.
Three, look forward to the possibility of reference
In China, due to the former Soviet Union criminal law theory, especially the theory of constitution of crime, the theory of anticipated possibility is not pay attention to, basically a long time No one shows any interest in. Only in the last century 90's only a few articles on this, or occasionally in some of the works of foreign criminal law, involved in teaching, introduction. In 2002 China law criminal law research from the research on the basic theory of value of criminal law, the theory of anticipated possibility in a major issue that year, which launched a concentrated discussion. But generally speaking, the study is still at the beginning stage in our country, discusses the main stay in the understanding of foreign existing research results, analysis, evaluation etc.. From the current view, the scholars are consistent, affirming to the necessity of anticipated possibility theory is introduced into the view of criminal law in china. The introduction of reason in addition to the value judgment of it, many scholars from the view of criminal justice looking for reasons, such as it was: the theory of anticipated possibility will be due to its scientific tests have no wrong and make important contributions to our country's criminal justice. In China's criminal law has been the existence of how to judge whether the actor has the problem the subjective fault, because the subjective content is the psychological attitude, the subjective matching judgment is quite difficult, but if the introduction of anticipated possibility, can according to whether there is a possibility that the offense. No, according to the specific situation of behavior, if optional existing behavior, behavior person did not choose to have the social behavior and the choice of implementation of the resulting damage behavior, then has its subjective antisocial, subjective sin. Conversely, if the optional no behavior, behavior can only be the case, the no free will, sin will cease to exist. {8} so Zhang Mingkai professor said: with the theory of anticipated possibility to test the acts of people the existence of the subjective fault, this is the significance of introducing the theory of anticipated possibility in criminal law practice. (11) this is a hand, on the other hand, although people think we should introduce the theory, but on specific issues may have many differences, these differences, in addition to the previously involved in a dispute about whether the judgment standard, super and regulations applicable to the dispute, and the position of anticipated possibility in the theory of liability of the dispute looking forward, more focused on the provisions of possibility theory and our existing criminal law provisions of contact. It suggested that, although the anticipated possibility in Chinese criminal law has not expressly declare, but in some specific terms has been reflected, for example, our country criminal law about the age of criminal liability provisions, the provisions on the emergency, irresistible, coerced offender, as well as the specific provisions of some provisions. Negative comments pointed out, some provisions in our criminal law is implied expected possibility should be obtained, based on the theory of anticipated possibility in read through the analysis of the relevant provisions of the legislative purport. If under 14 years old people do not bear criminal responsibility, but because the legal fiction in the age of the human people without responsibility, but for the premise of the anticipated possibility is the behavior person has the responsibility, for people without responsibility, no responsibility is in itself not bear criminal responsibility for, without then the lack of discrimination, control and cannot expect to explain the law behavior. And as the emergency in our country is the legal legal act, and look forward to the possibility to solve the problem of responsibility is illegal. In some countries, such as Germany Criminal Law, take the dichotomy of the qualitative emergency, is to protect the legal interests of small damage larger interests, emergency belongs to the ground for elimination of misfeasance, equal value in two kinds of legal interest, the emergency belongs to the impediment of responsibility. As a ground for elimination of misfeasance, because was not illegal, nature is not the crime, then do not need no possibility to explain the reason for not bear criminal responsibility. As the impediment of responsibility, the emergency is illegal, but it can't expect people to avoid danger by other means, thus hindering the responsibility, so the possibility, not for any emergency, but only for emergency as the impediment of responsibility. Of course, the provisions of the criminal law point of view, although the emergency is a statutory legal behavior, its legitimacy is the reasons for exemption, and look forward to the possibility of independent, but our country's criminal law also stipulates that the excessive necessity, shall bear criminal responsibility, but should waive or reduce the punishment, the less responsibility, can understand this expectation acts are not used when the possibility of hedging means little, as part of obstructing liability matter is established. As for the irresistible force is due to the body caused by the forced not to bear criminal responsibility for, and look forward to the possibility of solving problems is mandatory, etc.. Divergent, different opinions, and to make a long story short, the no one one, the theory of anticipated possibility has the vitality and charm of theory and powerful, to the introduction of our country's criminal law, will lead to a revolution in our criminal theory can solve difficult cases, a lot of criminal justice, so it needs to study deeply, we the system of.
Reference.
(1) the high Yang stop: "theory and practical" the general provisions of criminal law, Taiwan five southern publishing company in 1983 edition, page 282nd.
(2) the high Yang stop: "theory and practical" the general provisions of criminal law, Taiwan five southern publishing company in 1983 edition, page 286th.
(3) (day) Nishihara Haruo: "the foundation of criminal law and philosophy", Gu Yourong et al, 1991 edition of the Shanghai Joint Publishing fourth pages.
(4) Chen Xingliang: "human nature" of the criminal law, Chinese Fangzheng press, 1999 edition, page first.
(5) (day) Otsuka Hito: Essays on "criminal law" (1), Yuhikaku publishing Showa 53 edition, 240th pages.
(6) Hume: "human nature", Guan Wenyun translation, commercial press in 1991, sixth pages.
(7) Huang Dingquan: "the crisis theory of criminal responsibility -- the theory of anticipated possibility" set: Chen Xingliang editor of "Criminal Law Review" (fourth volumes), China University of Political Science and Law press, 1999 edition, page 150th.
(8) (day) in "criminal law significance: Teng - General" (next), Yuhikaku publishing 1991 edition, page 1103rd.
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    (11) Zhang Mingxie: "criminal law" (the book), Law Press 1997 edition, page 192nd.
The so-called "hobby horse". The defendant, a coachman, employed driving a double bridle carriage, one horse had its tail around the reins and forced under pressure of work, it is easy to cause the carriage out of control caused by accident, the defendant to the employer to change this horse, though the employer refused to adopt, and solutions to hire the threat, under the helpless, the defendant had to surrender. One day, the driver of the coach to Shangjie, a horse to horse around the habenula habit attack, and forced under pressure, the defendant is trying to tighten the reins control, but failed, the carriage out running, finally the injured a passerby knocked fracture. After the incident, the prosecutor to manslaughter prosecution, the court of First Instance judgement of acquittal, the prosecutor has appealed to the court case, the German Empire, the imperial court, ultimately rejected the appeal, reason is: should the defendant has the liability for negligence, only according to the understanding to the horse in the tail around habenula habit and may lead to the carriage out of wounding is not enough, must also consider the defendant based on this understanding and reject proposed driving this horse is the necessary condition to the employer. However, the fact cannot expect the defendant regardless of the danger of losing their jobs and refused to drive the horse, so the defendant does not bear the liability for negligence. (see Cai Dunming editor of "criminal proceedings" Taiwan five southern publishing company in 1983 edition, page 474th.)
② see Wu Yuhong "," Zhang Yajun "on the anticipated possibility theory of anticipated possibility of". Set: Chen Minghua chief editor "establishment of basic theory" and the constitution of crime crime, China University of Political Science and Law press, 2003 edition, page 149th, 519th pages.
{3} see you Wei, Xiao Wanxiang "on the theory of anticipated possibility of philosophical and ethical foundation" set: Chen Minghua chief editor "establishment of basic theoretical research" and the constitution of crime crime, China University of Political Science and Law press, 2003 edition, page 513rd.
{4} see Wu Yuhong commented: "load" look forward to the possibility of Chen Minghua chief editor "establishment of basic theoretical research" and the constitution of crime crime, China University of Political Science and Law press, 2003 edition, 419th - 420.
{5} see Li Lizhong: "based on China's criminal law research possibility," set: Chen Minghua chief editor "establishment of basic theoretical research" and the constitution of crime crime, China University of Political Science and Law press, 2003 edition, page 550th.
{6} Zheng Liping: "in our criminal law theory of anticipated possibility theory and reference to absorb" set: Chen Minghua chief editor "establishment of basic theoretical research" and the constitution of crime crime, China University of Political Science and Law press, 2003 edition, page 505th.
{7} Zhou Guangquan: "the theory of anticipated possibility reference" on China's criminal law theory of loading: Chen Minghua chief editor "establishment of basic theoretical research" and the constitution of crime crime, China University of Political Science and Law press, 2003 edition, 476th - 477.
{8} see Li Lizhong "based on China's criminal law research possibility," set: Chen Minghua chief editor "establishment of basic theoretical research" and the constitution of crime crime, China University of Political Science and Law press, 2003 edition, page 549th.