期待可能性理论的梳理

A Clarification on the Theory of Probability of Anticipation

有必要站在非决定论的立场讨论期待可能性;有关期待可能性的部分观点分歧,缘于在不同意义上使用期待可能性概念;期待可能性虽然在德国受到冷落,但这仅限于故意的作为犯的情形,而且有其特定原因;我国目前应当采取规范责任论,使期待可能性理论发挥应有的作用;缺乏期待可能性既是某些法定的责任阻却事由的根据,也是超法规的责任阻却事由。

It is necessary to discuss the theory of probability of anticipation with the standpoint of indeterminism. Some disagreements about this theory come from its multiple meanings. Probability of anticipation has at least four meanings in criminal theories, that is, probability of anticipation as the foundation of criminal liability, probability of anticipation as a liability condition, probability of act in negative crime, and probability of anticipation as a condition of negligent crime. The theory of probability of anticipation is the natural inference of the normative culpability theory, but is now snubbed in Germany, for some German scholars adopt the functional culpability theory. Owing to the multiple meanings of probability of anticipation, its fundamental doctrine plays different roles in various circumstances in different titles. In Germany, lacking probability of anticipation has been accepted by Criminal Law as legal causa excusationis, thus one can seldom be exempted from criminal liability for lacking probability of anticipation out of legal provi- sions. Moreover, because of the adequate development of society and the maturity of legal system, people can enjoy sufficient freedom within the boundary of law, and rarely act without probability of anticipation. To sum up, in Germany, probability of anticipation still possesses a significant position in negative crime and negligent crime, and as the foundation of criminal liability, it is also still very important. Only in intentional crime of commission has probability of anticipation as a liability condition no more important function. However, there is still necessity to use such theory in our country. The functional culpability theory has obvious defects and we should take the normative one in current time, exploiting the advantages of the theory of probability of anticipation. Chinese Criminal Law provides only part of causa excusationis, hence lacking probability of anticipation is not only the legal causa excusationis, but also an extra--legal causa excusationis. Those mistakes derived from this theory may he corrected in the course of determining whether there exists probability of anticipation or not. On the other hand, this theory should also not be abused to acquit somebody of a crime. As to causa excusationis （including lack of probability of anticipation） which should but has not yet typified by Criminal Law, criminal theory should make them up. Innocence by reason of lacking probability of anticipation should rarely happen in circumstances which do not belong to any existing type.