A Study On The Theory Of Victim 's Consent

Because our country criminal law expressly provides for only self-defense and emergencyhedge both illegal deterrent for only through normative interpretation of the criminal law provisions,the victim can agree as a kind of super rules out crime. In this article, we will in the context of athree-stage crime theory system of victim consent theory carries on the discussion, I would use theterm "agree", not the specific divided into "agreement" and "commitments", and unified the victimagree with this concept. In the criminal theory system in three classes to agree with the theoreticalbasis of the victim, system status, constitutive requirements and legal effect for in-depth discussionand research, to solve difficult cases in reality.Most of scholars advocated the measure of legal interest is the theory foundation of victimconsent and with reasonable and persuasive, in Germany, Japan and other civil law criminal lawtheorists point position. Function and the role of victim consent can only be discussed in the criminaltheory system, judge whether the behavior of the person in line with the constitutive requirements, isa kind of fact judgment, judge whether the behavior of the actor has illegality, it is a kind of valuejudgment, a lot of problems only by value judgments can get legal and proper solution. The victimconsent with resistance, but constitutive requirements of conformity, the resistance to illegality, butreason and reduce criminal punishment factor and other kinds of function of criminal law.To determine whether a crime was established, is in accordance with the objective to thesubjective judgment first, first fact judgment and value judgment, first form judgment againsubstantial judgment. The constitutive requirements of conformity judgment first, and then toillegality judgment. Constitutive requirements of conformity is a fact judgement, and illegality isvalue judgment, fact judgment before the value judgment. Criminal constitutive elements ofconformity judgment is the basis of illegality judgment, the behavior of the meet the requirements ofcrime constitution can be concluded that behavior has illegality, it also embodies the essence of theprinciple of a legally prescribed punishment. Regulations of its deterrent for is to form has theillegality of the behavior through substantive illegality judgment, make the behavior illegality.