| From the legal proverb "the behavior acquired the promise does not break thelaw", the problem of the promise from the victim comes into being. The theorycontains tremendous value in criminal law and has particular value orientation forachieving the goal of the justice of criminal law. Modem criminal law theories inevery country usually regard it as condition of preventing criminality, especially asjustifiability of eliminating misfeasance. Some countries and areas definitelyprescribe the victim's promise in legislation, taking it as legal justifiability. Butmost countries and areas' penal codes has no specific provisions on this, onlyresearching it as supra-law ground for elimination of misfeasance in theory. ButChinese criminal law does not prescribe it, and only discusses it as one ofpreventing social jeopardize besides justifiable defense, necessity. In practice, ourcriminal theory pays less attention to it and theoretic study is correspondinglyinadequate, therefore it has the value of further research, which can promote theperfection and application of this theory.With approximate 37000 characters, the dissertation launches its researchfrom following four parts.The first part is about the fundamentals of the victim's promise. First of all,this article reviews the history of the victim' promise, with the conclusion that thetheory of victim's promise is about the divide between the private right of thecitizen and the public power of the nation and the society. And then this paperanalyses and compares the promise from the victim of different country's relatedstatue and theory in system of civil law with system of common law for thepurpose of distinguishing it to help us to pay heed to it in theory and make itperfect.The second part is concerning the essence of the victim's promise. To beganwith, the article discusses the significance of studying the essence of the victim'spromise, and especially focuses on the argument of the victim's promise belongingto "preventing constitutive requirements", or "preventing irregularity". Accordingto our criminal theories I surely consider that the debate on preventing constitutiverequirements and preventing irregularity does not exist in our country. The angle of analyzing justifiability does better benefit to cognizing its essence. Based ongrasping its essence, I believe that taking the victim' self-determination right asthe foundation of the promise of the victim's excluding criminality corresponds toour criminal legislation and judicatory practice.The third part discusses the constitutive requirements of the victim's promise.Specifically speaking,constitutive requirements consist of the subject having theability of the promise, namely the ability to understand the content and meaning ofa promise and make it; the victim getting the capacity of disposing in privatebehalf; promise being true, sincere and genuine, and victim's promise with flawof opinion being invalid.; valid promise just occurring before promise or atpresent; the act being consistent with the content of promise and etc.The fourth part elaborates the victim's promise that is based on deducing.This part maintains focus on the concept and characteristic of the deducingpromise, on the legitimate ground being harmony of the society, and onconstitutive requirements when the deducing promise is legitimate. |
