The Influence Of The Victim’s Fault On The Sentencing

In the field of criminology,the research on victim science has gradually improved,and the status of victims has been promoted.Its role in crime has also been fully explored in academic and practical circles.In order to make a more comprehensive evaluation of the behavior of the offender and realize the adaptation to the crime,some behavior related to the victim and the case can not be ignored.As a result,the fault of the victim,which may cause or aggravate the crime of the offender,has entered the criminal law field.The fault of the victim was originally derived from criminology and was gradually used in criminal law cases.Because of the early start of foreign criminology research,it has gradually developed into the criminal law field.Therefore,the thorough study of foreign scholars for the victim’s fault influence sentencing,there are many theories about this prolem,the shared responsibility doctrine,"conditional rights" theory,"self creation risk" theory,"distribution" theory,the offenders culpability mitigated and so on.At the same time,in Germany,Italy,Switzerland,Russia and other countries,there are provisions about the circumstances of the victim’s fault in general rules or sub clauses of the criminal law,which is regarded as a statutory circumstance affecting sentencing.However,in view of the fact that our country has not paid enough attention to the victims,the discussion of its fault behavior started late.There is still much controversy about the fault of the victims which will affect the final penalty of the offender in the theoretical circle.In contrast,our country in the criminal law and the relevant judicial interpretations of the provisions of the plot is simple,only the discretionary circumstances of sentencing,and the lack of maneuverability.But through the analysis of the judicial practice of our country,it is known that the fault of the victim is the plot often mentioned in the criminal case,especially in the violent crime.The frequency mentioned by the defense party is relatively high,and the proportion that the judge finally finds and adopts is relatively low.The standard is rather confusing,leading to problems in the application area.Therefore,in this case,we need to clarify not only how the victim’s fault is applied in practice,but also more importantly,we need to clarify the basic premise concept of the victim and the fault behavior,only by determining the meaning of the victim and its fault can we determine its scope of application and apply it.The theoretical discussion of the criminal law is ultimately to guide the judicial practice,so the discussion on the fault of the victim can not leave the cases in the judicial practice.The existing research is generally limited to purely theoretical analysis,or case analysis sample is small,and can not get the most intuitive conclusion through case analysis.Therefore,this paper intends to analyze the 762 first instance cases in Jilin Province in the last three years,the emphasis is on the analysis of cases by judges’ identification and adoption of the fault of the victim,obtain the type of case,the type of victim,the type of fault,the degree of fault,the nature of fault,the relationship between the offender and the object of the fault,the scope of the sentencing and so on.At the same time,through the theoretical analysis of the relationship between the victim’s fault and the sentencing to ascertain the legitimacy of it can effect the sentencing,obtain the fault of the victim and the deserved state of the impact on the sentencing.Through the study of the problem,the relationship between the victim and the criminal is cleared up,so as to make an objective and comprehensive evaluation of the criminal behavior and the criminal penalty.The victim of the victim’s fault which affects the sentencing should include the natural person and the unit,the perpetrator and fault target can be the same person,close relative,or the other close person,and the scope of the victim’s fault should be more extensive,it should include the misconduct of the victim in a certain connection with the criminal act because of the intentional or negligent implementation of the victim.The criteria,nature,type and degree of the determination of the impact of sentencing should be refined in the relevant judicial interpretations or implementation rules.