期待可能性理论研究诸失误之匡正

Rectification on Lapses About the Theory of Probability of Anticipation

期待可能性理论有其一定的理论脉络。在我国,不注意中外刑法理论体系的差别,生搬硬套或者误用期待可能性理论的现象比较严重。如有论者主张无期待可能性是我国刑法中无刑事责任能力人与紧急避险不负刑事责任的原因,有论者主张期待可能性在我国是刑事责任能力的一个要素,有论者认为期待可能性理论属于刑事责任论的内容,有论者认为应以期待可能性理论来完善我国的罪过理论等等。以上诸观点,在现行刑法理论体系之下,都值得匡正。

The theory of probability of anticipation has its system in foreign science of criminal law and can't be applied in our science of criminal law unconditionally. There are some lapses, which need to be corrected, about applying this theory in China. At first, the theory has no business with that the act of any person who is criminal incapacity is not a crime act. Secondly, the probability of anticipation should not be an element of the capacity of criminal responsibility and should not be the content of the theory of criminal responsibility in our criminal jurisprudence, either. Thirdly, the probability of anticipation can't be included by criminal intent and criminal negligence. The probability of anticipation should be the premise of criminal intent and criminal negligence in our science of criminal law in author's opinion.