On The Impact Of Victim’s Fault On Conviction And Penalty Measurement

With the advancement of restorative justice, the protection of victims’ rights in criminal procedural law was highly concerned. But the research of victimology and judicial practice shows that victims are often involved in criminal interaction in different ways and degrees and substantially affect the criminal process and results. So, the protection and criticism of victims should be balanced. Particularly in the criminal law perspective, the substantive impact of victim’s fault on the criminal responsibility should be given full consideration, and equal attention should be given to the penalty and protection, the neutral position is also needed. Taking victim’s fault in the context of criminal law as the research object, and basing on the theory, legislation and judicial experience of common law system and civil law system, the paper systematically discussed the double impact of victim’s faulty behavior on the conviction and sentencing, and tried to explore the victim fault’s position in the composition of crime and the penalty assessment system, also proposed some practicable system design assumptions. To explore these issues, the paper is divided into four parts to study.PartⅠ: The paper distinguished the meaning of the victim fault in criminal law and criminology, defined the basic concept of the paper, and pointed out that the victim’s fault in the context of criminal law is the behavior, which should be subject to negative evaluation, and can affect the crime and penalty adjudication of the criminal. Then the paper analyzed the constitutive requirements and types of the victim’s fault.Part Ⅱ: The paper demonstrated the legal basis on which the victim’s fault can affect crime and penalty. About this issue, the domestic and foreign scholars have proposed numerous theories, such as the principle of a conditional right, self-responsibility theory, etc. These theories are certainly reasonable, but still not comprehensive enough. Based on the theory of criminal law, the reduction of criminal illegality and responsibility is the legal basis, and a criminal policy that the legislature used to ensure the victims’ welfare and the rights of criminals should be the policy basis.Part Ⅲ: The paper analyzed the current situation of legislation and jurisdiction on affecting the crime and penalty of the victim’s fault, and made a comparative analysis of the implementation of victim’s fault system in typical countries and regions of common law system and continental law system. In terms of convictions, it discussed the impact of the victim’s faulty behavior in some foreign countries and regions, and revealed the negligence on the impact of victim’s fault on conviction in our criminal theory and practice; In terms of penalty measurement, foreign legislation generally regards the victim’s fault as the legally-prescribed circumstances of sentencing, but in our country, it reflects our deficiencies that defining the victim fault as a discretionary circumstances of sentencing.Part Ⅳ: The paper proposed legislation suggestions to the reconstruction of our victim’s fault system. The function of victim’s fault that impacts conviction and penalty measurement depends on its position in system of constitution of crime, to compensate for the functional defects, it is necessary to draw lessons from the theory, legislation and judicial precedent experience abroad, improve our system of constitution of crime timely, and explore other types of the crime obstructed which based on victim’s fault,and perfect the system of accusation; In the system of sentencing, in order to make the victim fault behavior function perfectly, it’s necessary to enhance its legal status, namely, make it become the legally-prescribed circumstances of sentencing. Specific approach may be that corresponds to ‘the guidance suggestions of sentencing’, makes clear legal provisions about ‘the victim fault behavior’ in criminal law or the judicial interpretations when the conditions are met, and provides scientific guidance for sentencing.