规范或理据:试论期待可能性的中国刑事司法语境

Legal Norm or Theory Basis: The future trend about the theory of Anticipated Possibility under Chinese criminal justice

期待可能性的实质是将引发犯罪的客观原因的责任转嫁给无辜的被害人,损害了被害人对犯罪人刑罚报应的合理预期,违反刑法公平原则。因此,期待可能性只能扮演裁量理论的角色,且只能在行为人为自己或近亲属逃离特别重大而现实的人身伤害或生存威胁而实施犯罪的情形中加以运用。

The essence of anticipated possibility is to transfer the responsibility about the objective cause of crime to the innocent victim, which damages the reasonable expectation of the victim about retributing the criminal punishment,and violates the doctrine of fairness under the law. Therefore, the theory of anticipated possibility can only play a role on discretion,and can only be applied in the cases that the perpetrator who has committed a crime for himself or his close relatives escaping from a particularly serious and realistic personal injury or existential threats.