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期待可能性理论充分体现了刑法谦抑性的价值底蕴,能缓和严酷法律与人性弱点间的紧张对立,真正建立“以人为本”的法治社会。20世纪90年代以来,我国刑法学界开始涉足这一领域,取得了一定成果。但是,一种新事物的产生与发展总有一个渐进过程,在我国现阶段,期待可能性理论还处在学术研究的层面,拥护与反对的声音在激烈碰撞。文章以慈母溺子案为切入点,从期待可能性理论在中国运用的原因、作用和标准来探析期待可能性理论合理运用的必要性,从某些新的角度对该理论进行了拓展,并希冀对期待可能性理论如何在中国合理运用有所裨益。
The expectation possibility theory fully embodies the value inherent in the restrained criminal law, alleviating the tension between harsh legal and human weaknesses, and truly establishing a “people-oriented” society ruled by law. Since the 90s of the 20th century, the criminal law scholars in our country started to get involved in this field and achieved certain results. However, there is always a gradual process in the emergence and development of a new kind of thing. At the present stage in our country, the expectation of possibility theory is still at the academic research level, and the voices of advocacy and opposition are in a fierce collision. Based on the case, motivation and standard of anticipating the possibility theory in China, this article explores the necessity of the rational use of expectation possibility theory, expands the theory from some new perspectives and I hope to expect the possibility of theory how to use it in China is beneficial.