The Study On The Influence Of Victim’s Fault To Sentencing

The research of modern victimology shows that in all crime cases,except the so-called victimless crime,there must be the offender,the victim and the interaction between them.Although the evaluation object of criminal responsibility refers only to the criminal,it does not mean that the victim plays an optional role in the whole process of crime.On the contrary,their words and behaviors can often influence or even shape the criminal behavior of others.However,the traditional theory of criminal law in China has been focusing on the criminal for a long time,with the criminal as the center,and judging the criminal responsibility by analyzing his subjective fault and objective behavior.The research on the victim is not systematic,and mostly focuses on the protection of the victim’s rights and interests,the victim’s consent and other issues,which does not match the positive role played by the victim in the process of crime.Since the victimology learning into China,with more attention paid to the studies of the victim’s fault,the theoretical circle has reached a basic consensus on its important role in the process of correct conviction and sentencing,but there are still big differences on the classification of victim’ fault,the establishment conditions,and the theoretical basis affecting conviction and sentencing,which have seriously hindered the victim’s fault from playing its due role in judicial practice.Based on the perspective of criminal law,this artical attempts to make a systematic study on the theory of victim’s fault by taking three cases of intentional injury occurred recently in practice as a starting point,to construct a normative evaluation system for the influence of victim’s fault on criminal responsibility,and to make corresponding criminal law evaluation on victim’s fault in order to determine the criminal responsibility of the offender more fairly and reasonably.The artical consists of about 33,000 words and is divided into four parts:The first part is the relevant cases and caused problems.First,introduce the brief details and different opinions of the three cases,then summarize three problems: First,how to identify the establishment conditions of the victim’s fault;Second,how to define the classification standard of the victim’s fault;The third is how the victim’s fault affects the sentencing.The second part is the analysis of the basic problems of the victim’s fault,as the researchbasis of this artical,is divided into four modules: The first is to clarify the meaning of the victim and the victim’s fault,so as to distinguish them from related concepts in the sense of criminology;The second is to analyze the history and current situation of the application of victim’s fault.From the victim’s fault thought in the traditional Chinese legal culture,to the present application of victim’s fault at home and abroad,it is clear that victim’s fault actually belongs to an important circumstance of sentencing that is not only inherited in Chinese legal tradition but also tested in foreign judicial practice;The third is to elaborate the conditions for identifying victim’s fault,which needs to meet five conditions,including object condition,subject and subjective condition,behavior condition and causality condition;The fourth is to introduce the specific classification of the victim’s fault made by Chinese scholars,after evaluating the advantages and disadvantages of each classification,the artical believes that the victim’s fault should be divided into three types: criminal fault,major fault and general fault,for the purpose of criminal law conviction and sentencing.The third part discusses the influence of the victim’s fault on the criminal responsibility.Firstly,the artical mainly introduces five theories put forward by domestic and foreign scholars:responsibility sharing theory,condemnation reduction theory,subjective and objective combination theory,conditional right theory,justifiable behavior of the defendant and forgivable behavior of the defendant.Based on the analysis of the above theories,the artical finally puts forward the modified subjective and objective combination theory as the theoretical basis for the victim’s fault to affect the criminal responsibility.Next,the author discusses the specific influence of the victim’s fault on criminal responsibility,based on the classification of the victim’s fault mentioned above and the newly released Sentencing Guidelines as a reference,the artical finds out the influence degree of criminal fault,major fault and general fault on the criminal responsibility of the perpetrator.Finally,the institutional design of the victim’s fault in the field of criminal law is constructed,on the basis of drawing on the legislative experience of foreign countries,it is suggested that China’s criminal law adopt the legislative mode of general rule + special rule,and elevate the criminal fault and major fault into the legal sentencing circumstances.The fourth part is the analysis conclusion of the above-mentioned case.According to the above legal analysis and combined with the case,the first part of the questions are answered,and the court’s judgment results are reviewed,which clarifies the standardized path of the victim’s fault from identification to classification to the impact of criminal responsibility.