期待可能性--刑事政策的理性选择

期待可能性在刑法理论体系中的地位,应从考察其哲学意义出发.从刑法哲学价值论上看,它是刑法的人道性价值在犯罪论体系的体现;从刑法哲学认识论上看,它是以实体理性为主旨,对形式理性的补充.传统理论把期待可能性局限于有责性的范畴,没有认识到期待可能性的违法阻却作用.期待可能性的刑法阻却作用,不仅渗透到有责性,也渗透到违法性,具有"出罪"的刑事政策功能,是刑事政策的理性选择,对刑事立法和司法都具有指导作用.

The Possibility of Expectation, the Rational Select of Criminal Policy

The research on the position of expectative possibility in the theory of criminal law should be started from its philosophic meaning. The possibility of expectation, on which is researched from the theory of valuation, is the reflection of humanitarian doctrine in the theory of crime; on which is researched from the theory of knowledge, is the supplement to formal rationalism with the purport of substantial rationalism. The traditional theory limited the possibility of expectation to the category of responsibility for an offence, which neglects its function of preventing an act from being illegal. The possibility of expectation not only can prevent an!act from being responsible for an offense, but also can prevent an act from being illegal, therefore, it has the criminal policy function of removing the criminal character from an offence. It is the rational select of criminal policy, which guided the criminal legislation and justice.