Research On Criminal Imputation In Victim’s Acceptance Of Risk

Risk acceptance cases are common,but the court’s attribution logic is limited by the criminal law position of the perpetrator,ignoring the substantive influence of the victim,and urgently needs the guidance of criminal law theory,but it is not unified in theory.Therefore,the study of the problem of victim risk acceptance has theoretical and practical significance.Based on the behavior domination,there is a logical leap in the reasoning of the classification of risk acceptance from the innocence of participating in suicide and selfmutilation to the innocence of participating in self-danger,which fails to answer the type attribution of common domination and correctly reveal the normative structure of risk acceptance cases.Risk acceptance should be discussed in a unified way.The contradiction of risk acceptance lies in that the perpetrator is both the infringer of legal interests and the assistant of self-realization.Even the accomplice theory,the social equivalence theory and the solidarity obligation theory,which are discussed from a special standpoint,cannot escape the use of self-determination theory in essence.Selfdetermination is the core issue of dangerous acceptance.For the understanding of self-determination,there is a debate over the theory of freedom of will and the theory of freedom of choice.The theory of free will does not clarify why the perpetrator does not have to bear the responsibility after the victim’s self-responsibility;moral law cannot be used as a basis for dealing with conflicts of external behavior;the setting of the victim’s self-protection obligation conflicts with the purpose of criminal law,as well as with the feelings of people.The theory of freedom of choice should be adopted,because under the dynamic concept of legal interests,the protection for legal interests is to protect the free control of legal interests.Although the acceptance of risk and the consent of the victim have the same philosophical basis,the acceptance of risk cannot be dealt with by the theory of consent,because in fact,most of the victims who accept risk hold an exclusive attitude towards the occurrence of the result of infringement.The mainstream view of their distinction is based on the subjective mentality of the victim and the perpetrator.However,this idea cannot deal with the classification of the situation in which the victim holds an intentional mentality and the perpetrator holds a negligent mentality.Therefore,the subjective mentality of the perpetrator should be taken as the criterion.If the perpetrator holds the intentional mentality,the victim agrees,and if he holds the negligent mentality,he accepts the risk.The victim’s consent is the value choice of "consent behavior,sacrifice of legal interests".When the value of a legal interest is extremely high,the value choice will be normatively deemed invalid.The victim’s acceptance of risk is based on his preference for risk,and he makes a choice of whether to put legal interests in risk in order to achieve a certain goal.Because the direction of risk is uncertain,the criminal law that cannot predict the future cannot interfere with the victim’s choice of behavior in principle.The essence of acceptance of risk is that the victim,based on his own decision,requests the perpetrator to assist or use the perpetrator’s hand to put his personal legal interests in risk.The dangerous act committed by the perpetrator is to assist the realization of the victim’s self-determination.In order to avoid falling into the selfcontradictory situation of respecting self-determination and blaming the assistant of self-determination at the same time,even if there is a result of infringement of legal interests,the criminal law cannot retroactively blame the perpetrator.Moreover,the perpetrator did not infringe upon the victim’s freedom of control and did not meet the preconditions for the establishment of illegality.When the victim agrees to the dangerous act,the connection between the legal interests and the corresponding code of conduct is cut off,which makes the code of conduct ineffective.