期待可能性在中国刑法中的规范证成

The Normative Evidence of the Theory of Anticipated Possibility in Chinese Criminal Law

源自德日刑法的期待可能性理论已得到所属国刑法的规范确认,发挥着违法阻却事由的重要作用。我国刑法尽管未明文规定期待可能性,但司法实务已有相关案例显现。引入期待可能性对于完善我国刑法体系、拓宽我国责任阻却事由适用范围意义重大。期待可能性游离于传统犯罪四要件体系之外,因此将其置于阶层论中方显合适。通过刑法总则的规范确认以及明确实践中的具体适用情形,方能完成该理论在我国刑法中的规范证成。

The doctrine of the theory of anticipated possibility,which originated from German and Japanese criminal law,has been recognized by the criminal law of the countries to which it belongs and plays an important role as a deterrent to violation.Although China’s criminal law does not explicitly provide for the anticipated possibility,there are already relevant cases in judicial practice.The introduction of the anticipated possibility is of great significance to improve the criminal law system in China and to broaden the scope of application of the cause of liability in China.The theory of anticipated possibility is outside of the traditional four elements of crime system,so it is appropriate to place it in the class theory.The theory can be confirmed by the general rules of criminal law and the specific circumstances of application in practice.