Contemporary Law Forum, the first issue in 2006.

About the author: Liu Peng, male, born in 1957, graduated from Southwest University of Political Science and Law in July, 1983. Currently, he is the vice president of Guizhou Police Vocational College, a professor of law and a tutor for master students. Main social part-time: Vice Chairman of Legal Education Committee for Minors of China Criminology Research Association, Director of china law society Criminal Law Research Association, Executive Director of Guizhou Law Society, President of Criminal Law Research Association, member of Legal Expert Advisory Committee of Guizhou Provincial People's Government, and special researcher of Law Institute of Guizhou Academy of Social Sciences. Research direction: criminal law, academic achievements of criminal law: 10 published monographs, edited textbooks and academic collections, completed 2 provincial and ministerial-level projects and 2 projects under research, and published more than 40 professional papers in public journals above the provincial level. Among the achievements, two won the third prize for outstanding achievements in philosophy and social sciences in Guizhou Province, the fourth prize for 1 and the second prize for strengthening the police through science and technology in Guizhou Province.

Abstract: Expectation possibility refers to the situation that if an act is to be recognized as criminal responsibility, it is not the act that the actor needs to expect, but other legal acts. The theory of expected possibility in continental law system has developed into a theory with great vitality and charm since its establishment, but there are still disputes about the legal nature and standards of expected possibility. The introduction of the theory of expected possibility will lead to a revolution in the basic theory of criminal law in China, and it is also of great significance in criminal law practice.

Keywords:: Comment on the Possibility of Expectation in Civil Law System

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Comment on the theory of expectation possibility of criminal law

Continental law system

Peng Liu

Abstract: the basis of probability theory

Expectation means that an actor is not expected to make.

Act, but another legal act replaces the act or criminal responsibility.

About behavior is certain. Expected probability theory

Since its establishment, it has developed into a fascinating theory full of vitality.

Although there are many in the civil law system

Controversy on legal characteristics, standards and other theories

Open. The introduction of expected probability theory is right

The basic criminal theory of criminal law and its role in criminal proceedings

The important role in China's criminal practice.

Keywords: mainland China

Probability of legal system

Expected assessment

The theory of expected possibility came into being in the early 20th century. It is generally believed that it originated from the case of "ponytail tangling" made by the Fourth Criminal Department of the German Imperial Court on March 23rd 1898. Once the case was published, it quickly attracted widespread attention in German criminal law circles. Scholars have written articles on this case in succession, trying to find theoretical basis and breakthrough, among which Meyer's Responsible Behavior and its Types is the most influential. Meyer, as the initiator of normative responsibility theory, pointed out that besides psychological factors, there must be "the possibility of condemnation". Frank also pointed out: At that time, it was generally believed that it was inappropriate to regard the essence of responsibility as a psychological element. "Responsibility" is a compound concept. Besides psychological elements, there are also "responsibility ability" and "normal incidental circumstances" as elements. In addition, he believes that the most important element of liability is the "normality of incidental circumstances", and the so-called "normality of incidental circumstances" here is the possibility of expectation. Therefore, Frank is generally regarded as the founder of the theory of expected possibility. Later, a group of German criminologists further developed and popularized this theory, gradually formed and matured, and soon spread to Japan. Recommended by Japanese scholars, it has caused great influence in Japan and has been further studied. At present, it has been widely recognized by Japanese criminal law scholars and practitioners. This theory is also highly respected in Taiwan Province Province of China, and it has become a theory with great vitality and charm in civil law countries, especially German and Japanese.

First, the meaning of waiting possibility and its rational evaluation

"The so-called possibility of expectation means that if criminal responsibility is to be determined for an act, it must not be the expectation of the act, but the expectation of other appropriate acts. That is to say, according to the specific circumstances of the behavior at that time, if the perpetrator can be expected not to commit a criminal act, but to commit a criminal act against this expectation, it is called criminal responsibility. Therefore, if there is no such possibility of expectation, it is impossible to expect, which will become the reason for obstructing responsibility, that is, the criminal responsibility of the perpetrator cannot be investigated. " [1] Expectation possibility, from its background, can be seen that the core or essence of this theory lies in "the power of law is not superhuman". When a person is in trouble, the objective external environment forces him to only commit illegal acts to solve problems, or it is difficult to choose appropriate laws, his helpless choice should not be condemned, even if his behavior formally meets the conditions for the establishment of a crime, it should not be the object of criminal condemnation, or at least.

People often say that "the law can't tolerate family ties." When law and kinship are incompatible, the only choice is to act according to law, which is the so-called "laws must be observed, law enforcement must be strict, and offenders must be prosecuted". From the judicial point of view, this proposition is beyond reproach. The question is how legislators should consider how to minimize and prevent the conflict between emotion and law when formulating laws, that is, how to consider the proposition that "law should have emotion". The formulation and implementation of criminal law should embody humanistic spirit. If a person has to choose an illegal act against his original intention in desperation and bear the burden of criminal investigation for it, this act is "undoubtedly against human feelings and is creating a gap between the people and the law." [2] As an obvious "evil", criminal law must be constantly questioned for its legitimacy and rationality in order to gain the understanding and loyalty of the society and make the society tolerate the existence of this "evil", so that the criminal law manifested as "evil" contains the premise and factors of "good". {3} Japanese scholar Haruo Nishihara commented: "The result of criminal law is such a serious' necessary evil' that we have to scrutinize the rationality and normality of its existence. Because of a law whose rationality and necessity are not clear, our citizens are restricted in their daily life. If they break the law, they will be punished, their important interests will be violated and they will be branded as prisoners. All this is unbearable. " [3] China scholar Professor Chen Xingliang pointed out: "The basis of criminal law is to regulate people's behavior. Any criminal law norm is only reasonable in essence if it is based on the scientific assumption of human nature. " [4] Based on this, Japanese criminal jurist Otsuka Hitoshi made the following comments on the theory of expectation possibility: "Expectation possibility is a theory of pouring tears of sympathy into criminal law for the fragile humanity of people who are breathing in front of powerful national laws and regulations." [5] All science is related to human nature. Any subject, no matter how far it seems from human nature, will always return to human nature in one way or another. [6] The possibility of expectation undoubtedly provides a way back for the rational return of criminal law. Therefore, we say that the deep concern for human nature is not only the ethical basis for the reasonable existence of expectation possibility, but also its most important value.

The value of the theory of expected possibility lies not only in that it embodies the humanitarian principle of criminal law and fully expresses the respect for human nature, but also in that it caters to the value position of criminal law, that is, shrinking in, hiding behind, not expanding outside and putting forward. The concept of modern criminal law advocates the modesty of criminal law in interfering with social activities. The principle of modesty of criminal law not only pursues the minimization of the starting cost of criminal law, but also pursues the maximization of the economic benefits of criminal law. More importantly, it is to restrain the country's potentially expanding penalty power. If a society is full of tentacles of criminal law, the result will inevitably lead to criminalization and abuse of punishment, and it is difficult to gain public psychological identity and cultivate public loyalty to criminal law. Therefore, criminal law can only be used as the ultimate means, and the power of criminal law can only be used when other means are weak or ineffective. The theory of expectation possibility conforms to the spirit of criminal law, which not only makes expectation impossible to be a legitimate reason for eliminating punishment, but also makes the situation of low expectation value a reason for mitigating punishment, thus greatly restraining the expansion of penalty power and exerting the function of "safety piston to adjust the positive friction between reality and law" [7].

Second, the controversial issues in the theory of expected possibility

The theory of expected possibility came into being in the early 20th century. Because it appeared late in the whole theoretical system of criminal law, there have been many controversies. These disputes or different opinions mainly revolve around the following issues:

(A) the legal nature of the possibility of expectation

The so-called legal nature of the possibility of expectation means that when the possibility of expectation is missing or impossible, can this situation become an exemption beyond the provisions, or can it only be used within the scope expressly stipulated in the criminal law? There are two different views on this issue: German criminal law scholars generally believe that the application of the theory of expected possibility should be limited. The so-called restriction means that only when there are provisions in the criminal law, the absence of expectation possibility is recognized as exemption. However, if this theory is used to deny the guilt beyond the scope of criminal law, it will lead to unprincipled understanding and forgiveness, lead to the nothingness of responsibility criticism, and even become a tendency of pan-moralism, which is not conducive to the unity and scientificity of criminal judgment. {4} Accordingly, German criminal legislation has also implemented this idea, which was reflected in the draft German criminal law of 1925 and 1927 as early as, and the new German criminal law of 1 implemented in June 1973 clearly stipulates: "For. This provision does not apply to an actor who, according to his circumstances, can be expected to experience danger if he causes danger himself or has a special legal relationship. " Japanese criminal law scholars hold different views on this. Generally speaking, expectation can not be interpreted as a general exemption beyond the provisions, because "neither legislators nor positive law can be omnipotent, and positive law can not provide an exhaustive reason for preventing responsibility." Therefore, although there is no legal provision, whether it is intentional or negligent, when considering the lack of expectation possibility of proper behavior from specific circumstances, the responsibility of prevention should be recognized. " [8] In addition, denying responsibility by the lack of expectation possibility makes the unfortunate defendant get rid of the shackles of responsibility, which is in line with the criminal justice axiom that is beneficial to the defendant and does not violate the spirit of a legally prescribed punishment for a specified crime. Therefore, "the theory of denying criminal responsibility on the grounds that the possibility of expectation does not exist is not based on the explicit provisions in the criminal law, but should be interpreted as the so-called super-legal liability." [9] In the judgment of Showa 3 1 made by the Supreme Court of Japan, there is also such a judgment: "The theory of denying criminal responsibility on the grounds that the possibility of expectation does not exist is not only based on the express provisions of the criminal law, but should be interpreted as a reason for preventing responsibility outside the provisions. Therefore, the original judgment did not express its legal basis, but based on it. Although this theory is another matter, it cannot be called illegal. " [ 10]

The above argument also exists in the criminal law circle of our country. For example, the naysayers suggest that it is not conducive to the legal construction of our country to take the possibility of expectation as a reason to resist the responsibility beyond the provisions. In our country with low judicial credit, the weakening of criminal law is not the most important problem, and it is the most realistic problem to take the possibility of expectation as the reason to exclude the responsibility beyond the provisions, which is very terrible and must be resolutely put an end to. {5} While the positive theorists point out that the negative theory prohibits considering the possibility of exemption beyond the legal provisions, and think that the exemption can only be determined according to the explicit provisions of the law. In fact, this view is based on the belief that legislation itself is self-satisfied, and it relies too much on the skills and abilities of legislators. But in fact, when legislating, legislators focus on how to make criminal acts be specified in detail without omission. As for the situation of preventing responsibility, it is not the concern of legislators. {6} It is worth noting that while affirming that the possibility of expectation is beyond the scope of application stipulated by law, it also emphasizes that it should be strictly applied based on the current judicial environment and the quality of judicial personnel in China. The so-called "strictness" here should be understood as strict control of procedures. For example, in the past, China's criminal law restricted the application of analogy, and the current criminal law controlled discretionary mitigated punishment, which can be used as a reference for designing expectations beyond the possibility of application of laws and regulations.

(2) the standard of expectation possibility

The standard of expectation possibility refers to what is the standard to judge whether the actor has the expectation possibility of legal act, that is, what is the basis to judge whether there is expectation possibility in a specific case, so as to judge the existence and size of responsibility. Because it involves the operational problem of how to specifically identify the possibility of expectation, the debate is also fierce, and there are different opinions, which can be summarized as: actor-oriented theory or individual-oriented theory. It is argued that it is necessary to analyze and evaluate whether the actor should be condemned in ethics and morality according to his own ability and the specific situation of his behavior at that time, so as to judge whether the actor has the expected possibility of implementing other legal acts. The theory of general human standard, or social standard. It is advocated that the expectation possibility should be judged according to the general social cognitive ability and cognitive possibility. Theory of legal norms and standards, or national standards. This theory negates the first two theories, and holds that the standard of expected possibility should not be found in the doer or ordinary people, but should be based on the legal order of the country, and the standard should be the behavior that the state law expects the actor to take in accordance with the law.

Most China scholars hold a negative attitude towards legal norms and standard theories, and have different affirmations to the first two theories. Some people also put forward the comprehensive standard, saying that when judging the possibility of expectation, we should take into account the actor's standard and the average person's standard. There are also different views on how to balance. Some people advocate giving consideration to the standard of actors while others advocate giving consideration to the standard of actors. It is also suggested that the actor standard and the average person standard should be considered first, and in a few cases, the national standard should also be referred to. The reason is that, from the original pursuit of the theory of expected possibility, the actor-oriented theory is more appropriate, because the purpose of creating expected possibility is to save those who are unfortunately caught in a certain harsh environment from criminal punishment, but if the actor-oriented theory is implemented, the result will be that everything is understood and allowed, and the responsibility judgment is impossible and too arbitrary. Therefore, it should be based on the subjective and personal facts of the actor, and then judged by the standard of ordinary people in the actor's position, so as to give consideration to general justice and individual justice. At the same time, as the Japanese scholar Kikuji Kimura said: Because the actor does not live in isolation, but lives in a certain society and a certain country, this makes the actor have to accept some kind of coercion, which cannot alleviate his responsibility for this coercion. Therefore, in some cases, the possibility of expectation should also be determined by national standards. {7} The above analysis is reasonable to some extent, but the deficiency is that there are too many reference standards, which may easily lead to confusion and unnecessary disputes in judgment and may lead to disunity in application. The viewpoint of this paper is that the possibility of expectation is put forward because of a special case, and its purpose is to save those who are unfortunately caught in a certain harsh environment from criminal punishment. Therefore, judging the possibility of expectation should be based on the actor standard, and only when adopting the actor standard obviously violates the general social justice can we consider the general standard. As for the national standard, it is not considered in principle, but it is not completely ruled out, that is, when the behavior involves the vital interests of the country, it can be judged by the national standard. As some people have listed, soldiers in war should not be excused from desertion for fear of death.

Third, mention the possibility of expectation.

In our country, due to the influence of the criminal law theory of the former Soviet Union, especially the theory of crime constitution, the theory of expected possibility has not been paid attention to and has basically been ignored for a long time. Only in the 1990s, there were few articles about it, or it was occasionally involved and introduced in some foreign criminal law books and textbooks. In 2002, from the perspective of attaching importance to the basic theoretical research of criminal law, china law society Research Association of Criminal Law included the theoretical research on the possibility of expectation as the main topic of the annual meeting, and thus launched a centralized discussion. But generally speaking, the research in this field is still in its infancy in China, and the discussion mainly stays on the understanding, analysis and evaluation of the existing research results abroad. From the current general understanding, scholars hold the same and positive views on the necessity of introducing the theory of expected possibility into China's criminal law. In addition to affirming its value judgment, many scholars also look for reasons from the perspective of criminal justice. For example, it is proposed that the introduction of the theory of expected possibility will make an important contribution to China's criminal justice, because it can scientifically test the perpetrator's guilt. In China's criminal law, there has always been a difficult problem of how to scientifically judge whether the actor has subjective sin. Because the content of subjective elements is psychological attitude, it is quite difficult to judge the conformity of subjective elements. However, if the possibility of expectation is introduced, the existence of the actor's guilt can be proved according to the existence of the possibility of expectation. According to the specific circumstances of the behavior, if there is the selectivity of the behavior, the actor chooses to carry out the behavior that causes damage rather than benefits the society, which shows that it is subjectively antisocial and exists. On the other hand, if there is no selectivity of behavior, the actor can only do so, which shows that he has lost his freedom of will and the crime will cease to exist. {8} Therefore, Professor Zhang Mingkai believes that it is of the greatest significance to introduce the theory of expected possibility to test whether the actor has subjective guilt. [1 1] This is one aspect. On the other hand, although people all think that this theory should be introduced, there are many differences on specific issues. These differences focus on the connection between the theory of expected possibility and the relevant provisions of China's current criminal law, except the dispute about the judgment standard, the dispute about whether it can go beyond the application of laws and regulations, and the dispute about the position of expected possibility in the theory of responsibility. Affirmative theorists believe that although the criminal law of our country does not explicitly declare the possibility of expectation, it has been reflected in some specific provisions, such as the provisions on the age of criminal responsibility, the provisions on emergency hedging, force majeure and coercive crime, and some provisions in the specific provisions. The negative opinion points out that whether some provisions of China's criminal law imply the possibility of expectation should be obtained by analyzing the legislative gist of relevant provisions on the basis of interpreting the theory of the possibility of expectation. /kloc-people under the age of 0/4 are not criminally liable because the law imagines that people of this age are irresponsible, and the premise of applying the possibility of expectation is that the actor has the ability to be responsible. For those who have no ability to be responsible, their irresponsibility is the reason for not being criminally responsible, and there is no need to explain their lack of ability to distinguish and control their own behavior, so we can't expect this to be an appropriate behavior. Another example is that emergency hedging is a legal act in China, and the possibility is expected to solve the responsibility of illegal acts. In the criminal law of some countries, such as Germany, the nature of emergency avoidance is divided into two parts, that is, when protecting a big legal interest and damaging a small legal interest, emergency avoidance belongs to the reason of illegal exclusion, and when the two legal interests are equal in value, emergency avoidance belongs to the reason of liability exclusion. When it is used as a reason to prevent breaking the law, it is naturally not a crime because it is not illegal. At this time, there is no need to interpret it as a reason for not assuming criminal responsibility without expecting the possibility. When it is used as the reason for the exclusion of liability, it is illegal to avoid danger urgently, but at this time, the actor cannot be expected to take other measures to avoid danger, thus blocking the liability. Therefore, the expected possibility does not apply to all cases of emergency hedging, but only to cases where emergency hedging is the exemption. Of course, as far as the provisions of China's criminal law are concerned, although emergency hedging is a legal act, its legitimacy is originally a reason for exemption, which has nothing to do with the possibility of expectation. However, China's criminal law also stipulates that those who avoid risks excessively shall bear criminal responsibility, but the punishment shall be mitigated or exempted. The reason for reducing liability can be understood as expecting that the actor is unlikely to take excessive hedging at this time, so it is established as part of the reason for preventing liability. As for force majeure, it is the reason of no criminal responsibility caused by physical compulsion, while the expectation possibility solves the problem of mental compulsion, and so on. There are many differences and opinions, and they are not mentioned one by one. In a word, the theory of expected possibility has great vitality and theoretical charm. Introducing it into China's criminal law will lead to a revolution in the basic theory of criminal law in China, which can solve many difficult cases in criminal justice, so it needs to be studied deeply and systematically.

References:

[ 1]

Gao: Theory and Practice of General Principles of Criminal Law, Taiwan Province Book Publishing Company, 1983, p. 282.

[2]

Gao: Theory and Practice of General Principles of Criminal Law, Taiwan Province Book Publishing Company, 1983, p. 286.

[3]

[Japan] Haruko Nishihara: Fundamentals and Philosophy of Criminal Law, translated by Gu et al. , Shanghai Sanlian Bookstore 199 1 Edition Preface, page 4.

[4]

Chen Xingliang: The Human Basis of Criminal Law, China Fangzheng Publishing House, 1999, p. 1.

[5]

[Japan] Otsuka Hitoshi: On Criminal Law (1), published in Gefei Showa, 53rd edition, p. 240th.

[6]

Hume: Theory of Human Nature, translated by Guan, Commercial Press, 199 1, p. 6.

[7]

Yellow. On the theory of criminal responsibility crisis ―― the theory of expectation possibility. Chen Xingliang Criminal Law Review (Volume IV), China University of Political Science and Law Press, 1999, p. 150.

[8]

[Japan] Naito Tengqian: Introduction to the General Meaning of Criminal Law (Volume II), Gefei 199 1 Edition, p. 1 103.

[9]

[Japan] Kikuji Kimura: Dictionary of Criminal Law, Shanghai Translation Publishing Company, 199 1 Edition, the 29th1Page.

[ 10]

Gao, Theory and Practice of General Principles of Criminal Law, Taiwan Province Book Publishing Company, 1983, p. 303.

[ 1 1]

Zhang: Criminal Law (Volume I), Law Press, 1997, p. 192.

The so-called "crazy horse case". In this case, the defendant was a coachman who was hired to drive a double-breasted carriage. One of the horses has the habit of wrapping its tail around the reins and pressing down hard, which can easily cause the carriage to get out of control and cause accidents. The defendant asked the employer to replace the horse, but the employer refused to adopt it and threatened to dismiss it. In desperation, the defendant had to give in. One day, when the defendant was driving a carriage into the street, he got into the bad habit of liking horses. He wrapped his ponytail around the reins and pressed it hard. Although the defendant tried to tighten the reins, he failed. The carriage got out of control and finally knocked down a passer-by and caused injuries. After the incident, the public prosecutor prosecuted for the crime of negligent injury, and the court of first instance ruled that he was not guilty. The prosecutor appealed and the case was transferred to the German Imperial Court. After trial, the court finally rejected the appeal. The reason is that just because you realize that a horse has the habit of running around the reins with its tail, it may cause the carriage to get out of control and hurt people, which is not enough to determine that the defendant is at fault. It is also necessary to consider that the defendant refused to drive the horse for the employer based on this understanding. But in fact, the defendant cannot be expected to refuse to drive the horse regardless of the danger of losing his job, so the defendant should not be held accountable for his negligence. (See Essays on the General Principles of Criminal Law, edited by Cai Dunming, Taiwan Province Wu Nan Book Publishing Company, 1983, p. 474. )

(2) see Wu Yuhong's comments on the possibility of expectation and Zhang Yajun's humble opinion on the theory of the possibility of expectation. In: Basic Theory of Crime Constitution and Crime Establishment, edited by Chen Minghua, China University of Political Science and Law Press, 2003, pp. 149, 5 19.

{3} See You Wei and Xiao Wanxiang's On the Philosophical and Ethical Basis of Expectation Possibility Theory. Chen Minghua et al. ed. Research on the Basic Theory of Crime Constitution and Crime Establishment, China University of Political Science and Law Press, 2003, p. 5 13.

(4) see Wu Yuhong's comments on the possibility of expectation. Chen Minghua et al. ed. Research on the Basic Theory of Crime Constitution and Crime Establishment, China University of Political Science and Law Press, 2003, p. 4 19-420.

(5) Li See and Jong Li: "Prospect of the possibility of criminal law research based on China". Chen Minghua et al. Editor-in-Chief: Research on the Basic Theory of Crime Constitution and Crime Establishment, China University of Political Science and Law Press, 550th, 2003.

(6) See Zheng Liping: The Absorption and Reference of the Theory of Expectant Possibility in China Criminal Law. Chen Minghua et al. Editor-in-Chief: Research on the Basic Theory of Crime Constitution and Crime Establishment, China University of Political Science and Law Press, 505th, 2003.

{7} See Zhou Guangquan: The Reference of Expectant Possibility Theory to China's Criminal Law Theory. Chen Minghua et al. ed.: Research on the Basic Theory of Crime Constitution and Crime Establishment, China University of Political Science and Law Press, 476-477 (2003).

(8) Li See and Jong Li, Expectation Possibility Based on the Research of Criminal Law in China, Chen Minghua et al., Basic Theoretical Research on the Constitution and Establishment of Crime, China University of Political Science and Law Press, 2003, p. 549.