The Victim In The Criminal Law

Victim's consent as legal causes and the criminal principle of exclusive behavior have been widely recognized by most of criminal law scholars. It is not easy to ensure the cases concerning victim's consent in practice due to our nation's insufficient research on criminal law and no stipulation in criminal law. So that, regardless of being theoretically or in the practice has further discussion value to it. Therefore, this article wants to arouse the law experts and legislators' more attention by discussing the system of victim's consent. And the author advocates that along with to victim's consent fundamental research and the criminal justice practice question's solution, pledges it in the penal code. There are three parts as follows:I .The basic theory of victim's consentThis part mainly researched the basic theory of victim's consent, divided into two aspects:No.1 The introductions of the concept, history and legal significance of victim's consent. It is directly perceived of victim's consent in general through the concept and history of it. Legal significance of victim's consent is various, the consent in the different situation can produce the different criminal law results. This article proves the legal significance of victim's consent with the differences which caused by concrete scene, Carries on the classification of victim's consent's objective influences.No.2 The legal essence of victim's consent. The question why victim's consent can remove the crime and why can become legalisation matter puzzled the criminal law scholar continuously. But to this question understanding, must clearly recognize the legal essence of victim's consent. Many puzzled aspects have been presented because the Chinese and foreign criminal law scholar all proposed own viewpoints. The author believes there are two main reasons why victim's consent becomes legal causes after analyzing the understanding concerned. One is the criminal law protection of civilian's decision-making power; the other lies in the criminal law protection of social order. On this basis, The author believes the theory of benefit balancing is capable of comprehensively explaining the criminal law essence of victim's consent.II .The constructive condition of victim's consentThe complete effect of victim's consent must have basic and limited conditions. The basic conditions comprises: No.1 is principal body condition. Victims must have the capability of consent. And the judge of the capability of consent should take both criminal law and civil law into consideration. No.2 is subjective condition. It can be understood from the points of victims and actors. The meaning victim's consent must be true without any flaws, otherwise invalid. And the actor should have some knowledge of consent, otherwise it can not be accepted as the causes of being lenient by the criminal law. No.3 is time condition. It is usually considered that the consent should be made before the behavior, no later than the behavior is occurring, lasting till the performance of the behavior. There are three aspects of limitation of victim's consent, which are limitation of the consent benefits, social justice of victim's consent and expression condition. The consent is admitted only when there are complete individual benefits, but the rights of life and power of health which risks the life security are excluded. Social justice of consent behavior refers to victim can not breach the social benefits when he makes consent to his personal benefits. The author must guarantee he will not breach his social obligations when he performs the consent. The victim agreed other people harm its rights and interests, its pledge must the explicit will express.III. Victim's consent in our country's concrete applicationThis part is also divided into two aspects:No.1 The article introduces victim's consent in our country's present research situation, and analyzes the correlation relations with some hot topics such as legitimacy of euthanasia and organ transplanting.No.2 Firstly, the article elaborates the positive essence of victim's consent .Secondly, the article statement the legislation suggestion of it to our country. The author insists that victim's consent should be clarified in the legislation of criminal penal to fully manifest the fairness of the criminal law. The author suggests that the method of classifying the relative problems of victim's consent into the behaviors of crimes exclusion to stipulate in principle in the general rules and stipulating in detail victim's consent in the supervisions to increase the practicality of conviction and punishment.