The Basis Of Legitimacy Of Victim Consent Rules And Its Boundaries

Generally,it is considered that the consent of the victim is one of the defenses in the tort liability law,and the act with the consent of the victim is not illegal.The victim consent rule involves the community’s recognition and protection of the intention of a civil subject.The legitimacy basis of the rule has always been divergent,and under what circumstances the victim’s consent cannot debar the effect of breaking law,it is not clear.The first part of this article first briefly introduces the existing theoretical results on the consent of the victim,and proposes that a more meaningful discussion direction is to properly develop the legitimacy basis of the victim consent rule,which is a starting point and guide to sort out boundary issues in its application.In the second part of this article,by comparing the legislation,judicial practice,and academic theories of other countries,it is found that in other countries,liberalism or self-determination is used as the legitimacy basis for the consent rules of victims,but it will not be discussed in more detail.It is emphasized that such consent shall not violate laws,public order and good customs.The rule can enter into China’s judicial practice as a legal theory.The third part of this article mainly resorts to the philosophy of individualism.It discusses that the legitimacy basis of the victim consent rules is the individual’s right to self-determination in the tradition of individualistic thinking.This part also points out that because individuals live in a community,the aforementioned right of self-determination is not absolute and is always restricted from law and morality and so on.The fourth part of this article refers to the results of existing discussions on the requirements for the consent of the victim,and the subject,the consent ability of the subject,the quality of consent,and whether the content of the consent violates the mandatory provisions of laws and regulations and the public order and good customs were discussed.This part also discusses the circumstances under which the consent of the victim can prevent the illegality of the infringer’s tort;in which cases the consent of the victim cannot prevent the illegality of the infringer’s tort.