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Research On The Victim In Criminal Law

Posted on:2011-11-22Degree:DoctorType:Dissertation
Country:ChinaCandidate:J LiuFull Text:PDF
GTID:1116360305951672Subject:Constitution and Administrative Law
Abstract/Summary:PDF Full Text Request
Crime is not only a isolated social phenomenon, and penalty is not only for punishing crimianl either. The reaserch on criminology makes it clear that the interaction relationship of criminal and his victim occurs almost in every crimimal case. The traditional criminal theory peels off crime and the criminal from the interaction relationship and evaluates them singly. This practice consequentially throw away or ignore lots of factors which can affect the criminal responsibility, such as vcitim's fault, victim's prudent obligation. Therefore in the perspective of mormative jurisprudence it is an important factor about justice to evalue the victim's weighted responsibility.The traditional criminal theory not only believes devoutly that crimianl has free will entirely, but also thinks that humanbeing may feel awe to the crimianl law because of punishment just as animal's "stimulate-response" style, and that in this way the crimianl law can achieve the purpose of penalty. It draws out crimianl from his real life and evaluates crimianl behavior and his subjective culpability singly. The more important one is that traditional criminal theory dissevers criminal's life background, and abstract the criminal and his behavior infinitely, then only a shrivelled specimen of criminal can remain. In the criminal procedure not only the accused but also victim is treated as an object. The state grasps at the power of punishment and assumes it as a matter of course, but this course of action would not be advantage to solve the problem, the other way round maybe aggravate the separateness and the opposition in society. Although the inherent limitations in traditional criminal theory result in numbers of blind spots which it can't conquer by itself, it still has self-confidence, self-conceit, and self-arbitrariness.Criminal law has an attribute: "wave-particle duality", subjectivity and inter-subjectivity, in other words, individual rationality and public rationality. They reach opposite-unity at the norms layer. Only when the public rationlity is evolved from the individual discourse, does it has justness, social relevance, and validity to inflict punishment. Therefore, the criminal law which is case-hardened public rationlity has a certain extent objectivity. However, knowledge is in his course to evolve, so only the individual's right to discourse all the time, including the criminal procedure, is guaranteed, may criminal law be perfected endlessly. Now criminal law is dynamic one, embodying at the evolved public rationlity, and at the interlocution and responses in the criminal procedure among the accused, the defender, and the judge.The article is divided into 7 parts besides the introduction, totalling mor than 0.22 million words.In Chapter 1, it analyzes the concept of victim, and indicates that victim means legal interests have been violated. After introducing the interaction relationship between ceiminal and his victim, it puts forward the concept of victim's weighted responsibility.In Chapter 2, through carding the theory of subjective philosophy and the subjectivity of being in criminal law, the article makes it clear that Criminal law has an attribute:"wave-particle duality", subjectivity and inter-subjectivity, in other words, individual rationality and public rationality. This viewpoint is the core of my thesis, and the following text would develop it from these two sides.In Chapter 3, it discusses the first side: the deserts of subject's behavior, namely the side of individual rationality. Surrounging the free will, the article remoulds the theory of desert, establish the foundation thoery of criminal's responsibility, and analyzes the influence of victim's conduct to the deserts of criminal.In Chapter 4, the article embodies the victim's werghted responsibility, including vcitim's fault, victim's prudent obligation, and victim's consent. So-called victim's werghted responsibility means according the function of criminal or victim who is in the interaction relationship an weighted value should be endowed to the punishment.In Chapter 5, it discusses the second side:the inter-subjectivity, namely the side of public rationality. After researching the justness, social relevance, and validity of criminal morms, the article point it out that the public rationlity is evolved from the individual discourse, sc. the public rationlity has the attribute of inter-subjectivity.In Chapter 6, aiming at the limitations of traditional criminal theory, the article brings forward the concept of dynamic criminal law, and advances that criminal procedure should respect and guarantee the parties'right to discourse freely. From the view of victim, it emphasizes the victim's procedure rights and victim's participation rights in substantial verdict.In Chapter 7, from the criminal norms and utilizing legal interests as a analyse tool, the article interpret the especial types of victim, including victims in victimless crime and administrative crime. Now it is clear that a crime will violate legal interest, but maybe no victim exit. At the same time the article inducts the readers pay attention to graranteeing the rights of victims in administrative crime, including criminal compensation, governmental reparation and the support of society.
Keywords/Search Tags:victim, subjectivity, inter-subjectivity, dynamic criminal law
PDF Full Text Request
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