期待可能性理论初探

期待可能性是指根据行为时的具体情况,能够期待行为人实施合法行为的可能性。期待可能性理论有其人性基础,体现了刑法的谦抑。期待可能性在犯罪论中的地位应置于责任论中,责任能力、违法性的意识的可能性和期待可能性都是责任要素。期待可能性理论的引进,可以使我国刑法理论中的许多问题得到合理的解释,对刑事司法的指导意义也是明显的。

An Inquiry into the Theory of Expected Possibility

Expected possibility is the possibility that the actor could be expected to make legal activity in accordance with particular circumstances at the time of action. Expected possibility has the basis of humanity, shows the restraint of criminal law. Expected possibility should be set in doctrine of liability in criminology. Capability of liability, the possibility of illegal idea and expected possibility are the factors of liability. The introduction of expected possibility can well explain many issues of the criminal law in China, and obviously guide the criminal judiciary in China.