期待可能性理论的再思考

Rethinking the Theory of Expected Possibility

德国帝国法院1897年判决一起“癖马案”,由该案率先产生了期待可能性理论,该理论的核心价值是平衡了情理与法理的冲突,充分体现了刑法对人性弱点的关怀。大陆法系国家的日本随即也引入了该理论,并在司法实践中严格限制其适用。我国刑法中并未明确规定“期待可能性”问题,但我国的刑法理论和司法实践对该理论也是予以认可的。学界对期待可能性理论进行了多方面的研究,但对很多问题还存在很大的争议。本文基于上述研究的基础,对期待可能性理论进行思考,以丰富我国的刑法理论,并对促进该理论在司法实践的统一适用提供一定的参考价值。

In 1897, the German Imperial Court decided a “horse fetish case”, which took the lead in giving rise to the theory of expected possibility, the core value of which is to balance the conflict between reason and legal reason, and fully reflect the concern of criminal law for the weakness of human nature. The theory was soon introduced to Japan, a civil law country. The issue of “expectation of possibility” is not explicitly provided in China’s criminal law, but it is also recognized in China’s criminal law theory and judicial practice. There have been many studies on the theory of expected possibility, but there is still a great deal of controversy on many issues. Based on the above research, this paper considers the theory of expectation possibility in order to enrich the theory of expectation in China. The theory of criminal law provides a certain reference value for promoting the uniform application of this theory in judicial practice.