A long time ago, a legal proverb said: law does not oppress people. Only when a person has the possibility of expectation can he condemn the perpetrator. If he can't expect the perpetrator to behave properly, there is no possibility of condemning him. The possibility of expectation is in terms of one's will, which is one's ability to choose one's own behavior. This choice can only be made if he has the possibility of expectation. Only in this way can the illegal will of the actor be reflected. Whether there is the possibility of expectation is the reason why the responsibility can be blocked. There is no clear stipulation in the law, so it is called "the reason for excluding responsibility beyond the stipulation", and its existence needs the judge's judgment.
In China's criminal judicial practice, there is no judgment that directly applies the theory of expected possibility to declare the defendant innocent or reduce his guilt. However, when dealing with many cases, judges take into account the influence of "sense" in daily life on judicial conclusions, and try to keep the punishment moderate. When the defendant's behavior can be moderately lenient, it is "unbearable". Make the judgment as popular as possible. This is an indirect application of the theory of expected possibility. For example, marrying someone with a spouse constitutes a crime of bigamy in criminal law. However, when the actor is forced to remarry because of natural disasters, he knows that he has a spouse and has factual knowledge; Knowing that bigamy is illegal and knowing that it is illegal; In this case, marrying someone else is still a psychological will. However, because life forced him to remarry with others, he was irresponsible because he lacked the possibility of expectation. In this regard, it cannot be punished as bigamy. For another example, the judicial interpretation of theft by the Supreme Court has pointed out that mutual theft between relatives is generally not treated as a crime; If we really want to pursue it, we should also distinguish it from theft in society. This also takes into account the expected possibility. For another example, relatives who cover up other people's crimes also lack the possibility of expectation. In addition, the mitigation punishment for excessive defense and avoidance also takes into account the low expectation possibility of the actor. Malicious purchase of a large number of counterfeit money and use, criminals have heavy responsibilities and relatively heavy sentencing; After receiving counterfeit money by mistake, it is used to reduce its own losses. Because the expectation possibility is low, the punishment is relatively light.
First, the theoretical source.
The theory of expected possibility comes from the judgment of German court 1897 on the case of "lost horse": the actor has been employed to drive two carriages for many years, and one of them has a tendency to rein in the tail and forcibly pull off the carriage. The actor repeatedly asked for a new horse, but the employer did not agree to his request. One day, the driver took all emergency measures, but the horse still hurt others. The court ruled that the actor was not guilty.
In this way, the court denied the existence of expectation possibility according to the defendant's social relationship and economic situation, thus denying the culpability of the actor in the occurrence of the damage result. After the judgment was announced, Meyer first mentioned the possibility of expectation in 190 1; 1907 Frank adopted the case of "loving horses" in his paper "On the Composition of the Concept of Responsibility", which became the beginning of the theoretical study of expected possibility. Frank opposes the theory of psychological responsibility which only regards criminal psychological elements as the content of responsibility, and puts forward the concepts of "undeniable" and "undeniable possibility", and thinks that responsibility should include the following contents: (1) responsibility ability; (2) Intention or negligence; (3) Normal accompanying personality, that is, the situation around the behavior is in a normal state. In other words, the actor can be expected to be legal. After Frank, Hume basically completed the theory of expected possibility. He believes that legal norms have two functions: (1) to evaluate the role of norms and judge whether an act is appropriate or illegal; (2) The commanding actor must resolutely adopt a legal attitude and not an illegal attitude, which is an objective value judgment; For the latter, it is the norm to judge responsibility. Therefore, the problem of liability will only happen when the person who can only decide for himself according to the command norms violates his expectations and decides to commit illegal acts.
After the continuous development and improvement of the above-mentioned main representatives, the theory of expected possibility has been recognized by criminal law practice in most countries. Later, it was gradually applied to judicial practice. The advantages of applying the theory of expected possibility are: considering the actor's own situation, not asking too much of the defendant, thus maintaining the essential rationality of the punishment conclusion and not attaching unnecessary obligations. Its disadvantage is that the possibility of expectation is an unexpected reason, which is easy for the judge to explain, leading the defendant to block his responsibility for other reasons, thus.
Second, the judgment criteria
What standard should be used to judge whether the possibility of expectation exists is a controversial issue in criminal law theory. In this regard, there are mainly the following theories: (1) Actor-oriented theory, that is, whether the actor can do appropriate behavior other than his behavior when the behavior occurs. This takes the actor's own situation as the standard to judge the possibility of expectation. (2) the theory of average person-oriented, that is, according to the situation of ordinary people in society, whether the actor can make the same behavior as the actor is the standard for judging the possibility of expectation. (3) The theory of national standard is to judge the expected possibility from the standpoint of national legal order, taking the legal act that the actor is expected to do as the standard.
As far as the above three standards are concerned, each has its own shortcomings. Relatively speaking, the actor standard is more appropriate, because on the one hand, the purpose of expecting possibility is to give relief to individuals who are panting in the face of strong national laws and regulations; On the other hand, responsibility is to criticize the perpetrator of an illegal act, which should constitute an important factor. Therefore, we should consider the possibility of making a will choice from the standpoint of being a doer, so as to make the responsibility more reasonable. From this point of view, it is necessary to judge the possibility of expectation with the theory of actor standard.
Third, the relationship with intention and negligence.
There are different opinions on the relationship between expectation possibility and intentional negligence in theory:
(A) the theory of parallelism
Expectation possibility is understood as the third element of responsibility, which is juxtaposed with responsibility ability, intention and negligence. Although the possibility of expectation points to the subjective choice of the actor, it is not the subjective psychological content of the actor itself. It is an evaluation of the subjective choice of the actor in a specific situation from the perspective of legal norms. The judgment of expected possibility must consider the actual situation of the behavior at that time, whether there are special reasons, etc. It can be said that intention and negligence are subjective imputation elements, expectation possibility is objective imputation element, and expectation possibility is one of the imputation elements independent of intention and negligence. The problem is: if the three are juxtaposed, the expected possibility will become a part of the criminal facts, and asking the judicial organs to prove it will aggravate the prosecution.
(B) the theory of constituent elements
Expectation possibility is understood as the constituent elements of intention and negligence. The biggest criticism it faces is that intention and negligence are the knowledge of basic facts, while the possibility of expectation does not involve the existence of basic behavioral facts; Expectation possibility does not have the function of distinguishing intention from negligence.
(C) the responsibility of resistance theory
Expectation possibility is neither the third element of responsibility, which is juxtaposed with responsibility ability, intention and negligence, nor the constituent elements of intentional negligence. Instead, it should be understood that the situation where there is no possibility of expectation is a reason for the exclusion of responsibility.
Among the above three theories, juxtaposition theory and constitutive elements theory are directly opposite. The theory of parallelism regards the possibility of expectation as a responsibility element independent of intention and negligence, which can be attributed to the lack of the possibility of expectation. The theory of constitutive elements regards the possibility of expectation as the constitutive elements of intention and negligence, and it is not established without the possibility of expectation. The theory of liability resistance is completely appropriate in application, but it only makes a negative understanding of the possibility of expectation, rather than a positive study of the elements of liability, so it exists.
On this issue, the general position is to say side by side, which is a more reasonable view. It should be noted that as long as there is intention or negligence based on the actor's internal factors, it can generally be said that the actor is responsible, with the exception of events without expectation possibility. Expectation possibility is a so-called objective responsibility element which is obviously different from the actor's inner attitude, and is interpreted as a responsibility element different from intention or negligence. Theoretically, it is more concise and easy to understand. Therefore, in a case, it is necessary to consider whether it is necessary to use the theory of expected possibility to defend the defendant in order to obtain substantive rationality. Whether there is the possibility of expectation only needs to be proved when it is determined that the actor has intention or negligence, but it is obviously unreasonable to punish him as a crime. In criminal proceedings, first of all, it is pointed out that the actor lacks the possibility of expectation, and the responsibility for proof lies with the defense, and the public prosecutor only needs to prove it.
Under normal circumstances, people with the ability to be responsible usually have the possibility of expectation when they intentionally or negligently implement an act. Therefore, in most cases, whether the actor has the possibility of expectation does not need special consideration. But in some special cases, it is still necessary to judge the possibility of expectation. Of course, the application scope of the theory of expected possibility should not be too wide, otherwise it may lead to judicial confusion. When judging the possibility of expectation, we should consider various factors and be cautious.