许霆案中的期待可能性问题研究

许霆案已经尘埃落定，但对于该案的反思才刚刚开始。就重审法院对许霆的量刑而言，判决书中对许霆减轻处罚的理由显得苍白乏力，根据司法实践和我国的刑法理论，许霆并不具备减轻处罚的情节。基于此，为了让重审法院对许霆的减轻处罚更具说服力，部分学者转而借助于期待可能性理论为许霆减轻罪责。可是，事实表明，原审法院对许霆量刑过重的根源在于定性有误，许霆案根本不具备运用期待可能性理论进行解释的条件，用这一理论来解释许逵的行为是一个假命题。因此，试图通过期待可能性理论为许霆减轻罪责属于该理论的滥用，今后的理论研究和司法实践当引以为戒。

STUDY ON THE PROBLEM OF PROBABILITY OF ANTICIPATION IN XUTING CASE

The court had made the final sentence of Xuting case, but reflecting upon this case just begin. The reason of reduction of punishment to Xuting in the paper of sentence made by the retrial court was unpersuasive, According to judicial practice and criminal law theory in our state, there is no reason for the reduction of punishment. Thus, some scholar turned to depend on the theory of probability of anticipation to reduce culpability for Xuting, so as to provide more convincing reason for the reduction of punishment. However, the facts of this case had made it clear that the reason for the unjust sentencing to Xuting made by the first trial court is due to the wrong determination. There is no qualified condition that could be interpreted with the theory of probability of anticipation. And using this theory to interpret Xuting＇s act is a false proposition. Therefore, the attemption to use the theory of probability of anticipation to reduce culpability for Xuting is an abuse of this theory, which should be avoid in future studies.