The Study On The Victim's Acceptance At Risk

In Germany and Japan,the term “acceptance at risk” in the theory of criminal law has been discussed for a long time.There are many different opinions,which are mainly related to the dispute about the basis of excluding the perpetrator's criminal liability.In China,the cases of acceptance at risk,represented by the case of “Tian YuFu causing death”,are also widespread.Among the cases,the evaluation of the victim's acceptance at risk and the effect of the victim's behavior on the perpetrator's conviction become the difficulty in the judicial practice,which should be studied deeply by the theory of criminal law.The criminal law theory involved in the victim's acceptance at risk is very broad.The cases in practice are very complicated.The types of acceptance at risk,the basis of excluding Criminal liability,the imputation path,and so on,have a direct impact on the term of acceptance at risk.In our country,which has not studied the issue deeply,it is necessary to explore acceptance at risk in light of the local practice in order to exert its theoretical value and give it practical significance.This article attempts to start from the perspective of normative responsibility theory,to discuss this issue from the objective illegal level to the subjective level of responsibility in order to provide legal support for them.At the same time,through exploring this principle of criminal responsibility to ultimately solve the perpetrator's criminal responsibility issues in the cases of acceptance at risk.This article is divided into four parts,about 44,000 wordsPart I: To discuss the background and the current judicial situation of the problem of acceptance at risk,and then to generalizes the theoretical difficulties involved in this problem.In this part,according to the current situation of judicial practice,the article mainly points out that the existing judicatory has neglected the criminal law evaluation of the victim's acceptance at risk,ignored the impact of the victim's behavior on the conviction of the perpetrator,and handled the behavior of the victim's acceptance of risk as the victim's fault,existed a conflict between criminal law and civil law in the handling of acceptance at risk issues.At the same time,the problems of the victim's acceptance of risk include the following: The problem of the victim's acceptance of risk in the intentional crime,the definition of victim behavior,the basis of excluding Criminal liability,the judicial judgment on the perpetrator's criminal liability,which lays the foundation for exploring the theory in this article.Part II: To clarify the subjective and objective requirements of the term of "acceptance at risk",and to analyze the scope,behavior and subjective structure of the victim.It points out that although the victim's behavior is an objective situation existing outside the perpetrator,we should also treat the objective role and special status of the victim correctly,in the process of resulting in Legal interest infringement result.Whether victim behavior constitute "to accept risk",which has some conditions.Part III: To explain the basis of excluding perpetrator's criminal liability.This paper argues that the current three mainstream theories,including objective imputation theory,victim commitment theory and victim's creed theory,are self-contradictory and fail to explain the substantive reasons why the victim's behavior affects the criminal's criminal liability.Many theories in the level of“existence of facts constituting ” and “illegal” can not provide theoretical support for the “acceptance at risk”,Acceptance at risk should not be discussed at the objective level,but should be at the level of subjective responsibility.In the current principle of criminal liability,this article attempts to provide the legal basis for acceptance at risk through the perspective of normative responsibility theory.Part IV: To define the judgment path of the criminal liability of perpetrator in Cases of Acceptance at risk.This part specifically discusses the judicial judgment of the perpetrator's criminal liability from the perspective of normative responsibility theory,which is also a conception about applying the theory to practice.The cases of "acceptance at risk" should first determine whether the perpetrator's conduct is illegal.If the behavior of the victim makes the perpetrator thus lack the possibility of anticipating the result,possibility of knowledge of illegality,or lack probability of reasonable expectation act,the liability of perpetrator should be excluded.