Research On The Victim’s Consent In Criminal Law

As one of the causes of illegality deterrence in criminal law,the theory of consent has been generally recognized by the criminal law of countries worldwide and expressly stipulated in the clause of the criminal law in some countries. However,the Chinese Criminal Law has long been influenced by the Soviet Union Criminal Law,leading to a definition of criminal behaviors as “battles between isolated individuals and the ruling class”. Hidden in the power of the state, victims cannot fully display their subjective initiative. With less than enough attention paid to the theory of consent, research related to it remains immature. This paper is mainly divided into four parts:Chapter 1 generally summarizes the theory of consent. After elaborating on the concept of consent, a response to the question about the word of “victim” is given. The paper introduces the development of consent under three historical period of time: the slave society, the feudal society and the modern era. At the end of this chapter we try to look into the legislative status and theoretical development in different legal systems.The main content of chapter 2 is about the legal basis of the theory of consent,which analyzes relevant doctrines about the justification basis,the value orientation, the criminal effect and the living space in the nature of criminal law. Through the state of several layers, we can win a space for the theory of consent.The main content of chapter 3 is about the establishment of elements and the scope definition about the theory of consent. The paper divided the establishment of elements into several main parts:the subject element、the subjective element、the time element and the way of representing,and we also make a comment on the restriction of the dispose of right combining with the dispute in judicatory practice, for example, the disposition of personal right and euthanasia.The fourth part mainly analyzes the appliance of the presumptive consent. As a special kind of the theory of consent,it has its own doctrine and component element. When there is no objective consent,how we can come up with the consent there should be according to the actual situation is the puzzle we must confront in this part.The theory reflects the underlying problem of how individual wills can decide the application of criminal law,which is the game between individualistic criminal law and nationalistic law,and also one of the few embodiment in the right of self-determination in criminal law. The research of consent is of great significance in enriching the criminal theoretical system of our country,and it will surely promote the Chinese Criminal Law for greater development.