论期待可能性在中国应该慎行

On the Prudence to Application of the Theory of Anticipated Possibility in China

发端于1897年德国的期待可能性理论,目前已成为我国刑法学界研究热点之一。许多学者主张将该理论引入我国刑法学体系,有人甚至提出了不同的移植和改造方案。笔者基于该理论自身的不完善之处和它与我国现行的法律制度不相适应,与我国现行的刑法理论及刑法制度难以找到契合点,故其主张在中国应该慎行。

Theory of Anticipated Possibility originated in Germany in 1897. It has become a focus of study in the scope of law science in China at present. Many scholars advocate the introduction of the theory into Chinese criminal law system,and some even proposed various transplantation and rehabilitation programs of the theory. Considering both the imperfections of the theory itself and its maladjustment with Chinese current legal systems,the author argues that it is difficult to find out the interface point between the theory and China＇s current criminal law theories or the criminal justice systems. It is thus concluded that the Theory of Anticipated Possibility should be cautiously applied or conducted in China.