Research On The Relation Between Victim Fault And Crime And Punishment

In traditional criminal law theory, crime has been defined as a behavior that individualinfringe on society or state. For instance,criminal classical school’s founder Bekalia said:“the real staff measuring crime is the social harm caused by it.” Marx and Engels also deeplypoint out: crime is an isolated individual against the ruling class struggle.”Based on suchrecognition, criminal law theory system is entirely based on the “offender and country” dualstructure and foundation, and suffered damage of the victim is often regarded as criminalmatter of the object under the category of crime, it is difficult to really enter into the field ofvision of criminal scholars. The idea of the change began in western the1960s and1970svictim rights movement. By the exercise of influence, the united nations general assembly in1985passed The Declaration of Basic Principles of Justice for Victim of Crime and Abuse ofPower, and introduced two documents for administrating the Declaration. Members of thestate parting in the Declaration have also been through legislation or amendments to existinglaws to enhance the victim of the case, confer more criminal procedural or substantial rightson victims. The amendments to existing criminal law brought by the victim rights movementopened the victim of view, a new research perspective of criminal law theory, the victimtherefore entered into the field of criminal law scholars.But because of the victim rightsmovement and the promotion of the criminal legislation only unilaterally stressed theimportance of the victim rights protection and has led to severe punishment of the trend ofcriminal law,some scholars began comprehensively survey victim questions with a moreobjective and pragmatic attitude. Professor Gruber has been brilliantly pointed out that“thestatement about victim built in the victim rights movement create a fictional no fault victim,as a result, victim rights of the reform in most cases has increased the possibility andharshment of penalties……Criminal law should treat with the victim by a comprehensive andactual inspection.Criminal law should not only considered the victim as the person sufferedharm, but at the appropriate time regard him(her) as an wrongful actor”.Just based on thisthinking and anxiety about criminal legislation to protect the rights of the victim excessively,criminal law scholars began to pay attention to the victim fault. Therefore, in some sense, thevictim fault research is the victim rights movement’s direct result.This article summarizes theresearch topics to the victim fault, at the same time of catering to the practical trend, from the theoretical level further research the theoretical foundation that victim fault is introduced intocriminal law theory system. This article summarizes the research topics to blame for thevictim, to the practice of the same time, the victim into "level further offences and criminaljustice system should be the basis of the theory. And, if the theory of criminal law shall beincorporated into the victim of an offence, the victim fault and the traditional mode of the dualstructure criminal punishment evaluation system to be compatible, or how to arrange thevictim of the blame on existing criminal punishment evaluation system, and proceeded tocomplete system of the design and feasibility study will be unavoidable questions.Along such studing track, the thesis first point out that Kant’s philosophy whichtraditional criminal law system based on is flawed, and use the theory of the maininternational philosophy to provide the philosophical argument for criminal law shouldincorporate into the victim fault evaluation. Kant’s philosophy with the main reason, freedomand responsibility in this core category set up by “offender individual” as the core theorysystem and for the system have found a line intersects a crime, criminal responsibility andpunishment of the inner one in charge.This one in charge is in practice, the actor will be basedon the choice of human reason for its own set of moral law, therefore, the performer shall bearthe responsibility of the main reason is the implementation of the people’s respect. However,the fundamental defect of Kant’s philosophy as the main international philosophy pointed out,on its human subjectivity is in a reorientation of the sex or self-sufficient type of construction,filled with absoluteness and close.This construction in fact is impossible in disregard of theexistence of the other case.Because if there exists outside of my body, my body will not beabsolute sense of the principal; and if there do not exist outside of the main body, I couldn’tprove the subject of the laying of the intention is absolutely reliable. Since human subjectivityis not isolated, it should be placed with the other main relationship be interpreted in, and thefree will and the responsibility based on the main reason must have the link meaning withother subjects. Different from Kant’s philosophy of subjectivity, the main internationalphilosophy holds that the subject“self” at first is in the midst of the society; but the subject“self” on the other side is the spiritual being, and such a mental existence is at its ownexistence of understanding with the pure facts exist in relation to industry. Since subjectivityhas such a property, therefore, the spiritual life of self would have a special law system, that is,the ego as the body in the midst is to suffer other action’s influence, but my own body havingthe properties of the spirit and has the power of decision.Therefore, the free will should be understood as “the ego’s freedom in response to the motives”. Therefore, in accordance withthe main international theory, the free will is not practical reason’s self-discipline defined byKant, but a freedom that is under the influence of the motive law system.The motive lawsystem often arised from stimulation between subjects’s action, so the ego’s hehavior was putinto other body’s act of experience, and is no longer a pure ego will, but a relatively the selfwill. The main international philosophy’s new understanding about subjectivity and free willinevitably lead to different meaning of responsibility, because in according to Kant’s analysislogic, the responsibility and free will have closed relationship, the existence of absolute freewill is the only foundation of subject’s responsibility, as a result, the responsibility is entirelya relative self-responsibility in the main international philosophy’s theory, since the free willis relative. Novertheless, the main international philosophy’s definition of the responsibility isnot limited to that, but go further. According to Leweinase, owing to other body’s appearance,the subjectivity is only understood in the relationship between different bodies, and thesubject responsibility is not again the self-responsibility, but an obligation for others.Therefore, the responsibility is not relative to my free will, and in this sense, it is theresponsibility that defined subjectivity. In the whole, the main international philosophy on thesubjective, freedom and responsibility provided the philosophical argument for incorporatingthe victim into the criminal law. The subjectivity under the main international philosophyfully considered the relative meaning between the self and other bodies made the self-will andthe self-responsibility placed in the relationship to understood, and recognized the otherbody’s influence to the self-will. Such philosophical theory’s influence to criminal law is thatcriminal liability should fully consider victim wrongful behavior. Victim theory has provedthat victims in many criminal cases are not pure suffereds, their wrongful behaviors have theimportant influence to the criminal act and the harmful results. In these cases, the victimshave already had the same place with the perpetrator. Eventhough the victims will not beprosecuted owing to his suffered state or his non-criminal behavior, their hehavior’s influenceto the offenders should not be neglected.With the foundation victim fault incorporated into the criminal law system is constructed,the question need to further clarify is that how to establish the victim fault’s place in thecriminal law system and how to realize reasonable and practicable system design. To clarifythis question, the paper mainly from three levels in study. At first the paper defined thevictim fault in the context of criminal law, especially clearly established the constitutive elements of the victim fault, and the constitutive elements include typology, fault, connection,and extent. Second, the paper further analysized the legal basis on which victim fault shouldinfluence criminal liability. To this problem, the domestic and international criminal lawscholars made a lot of representative theory, such as the conditional right theory, costs andefficiency of the theory, creating dangerous theory, distribution theory, the protection oftheory, social standards theory and expective probability theory, etc. These theories fromdifferent sides argues for the victim fault’s influence on the criminal responsibility and hasprovided useful guidance. But these theories’ deficiencies lie in: their argument content is lackof comprehensiveness; or their argument method is lack of normativeness.Therefore, they aredifficult to be the foundation of victim fault theory, and at last is impossible to accomplishvalible system design on victim fault affecting criminal liability. Difference from the theoriesmentioned above, the paper abides by regular path and point out it should not be divorcedfrom criminal responsibility’s internal structure to search for the rightful basis of victim faultaffecting criminal liability. Whether or not the criminal responsibility is established, and theextent of the criminal responsibility are influenced by the component elements of criminalliability. As a result, the proper basis of victim fault influencing criminal liability is thatvictim’s wrongful behavior affects the component elements of criminal liability that it candecide whether the criminal liability is exist or not and the extent of its. The paper thenpointed out the extent that different types of victim fault affect the component elements ofcriminal liability is different. If victim fault affected the elements of deciding criminalresponsibility’s existence, the victim fault can eliminate criminal responsibility; and if victimfault affected the elements of deciding criminal liability’s extent, the victim fault onlymitigate criminal liability. It is because the victim fault’s influence on the componentelements of criminal liability is comprehensive and complex, any simply analysis based onsubjective (such as expective probability theory) or objective (such as creating danger theoryor conditional right theory), or abstract theory will be one-sided. Only abiding by the normalpath, to make the analysis based on the influence victim fault on the component elements ofcriminal liability, it can comprehensively grasp the rightful foundation victim fault affectingcriminal liability. Third, as crime and punishment appraisal system constitude the constitutionof crime and the measurement of penalty, to establish victim fault in the whole crime andpenalty assessment system in place, it need to separately set up the place victim fault in thecrime assessment system and the place victim fault in the penalty assessment system. The paper therefore separates two chapers to study the relationship between victim fault and theconstitution of crime and the relationship between victim fault and the measurement ofpenalty.The thesis’ position is that in the composition of crime, victim fault can be a defenseagainst crime or criminal responsibility; and in measurement of penalty, victim fault should bea statutory circumstance of sentencing.On specific system design, the thesis adheres to rationality and possibility principle, andhas a try to raise the system design scheme victim fault incorporated into the appraisal systemof criminal responsibility. Such a system design is achieved by improving the exisingcomposition system of crime and the measurement system of penalty. First, on theimprovement of the composition system of crime, the paper uses “step by step” strategy,combined with the current status quo of the composition system of crime, and suggests at thebeginning severa typical and matural victim fault types be included into the compositionsystem of crime, then with the steady accumulation of judicial experience gradually perfectthe victim fault defense system of types. Based on such consideration, the paper argued thecase for criminal law absorbing the provocation and sele-endangering,and established specificcomposition elements of the two defenses. Second, in improving the measurement system ofpenalty, the paper pointed out that victim fault as a statutory circumstance of sentencingshould realize its function by improving legislation, judicial interpretation and sentencingguidance. Legislation should be guiding and clearly stipulate victim fault as a statutorycircumstance of sentencing, and judicial interpretation should further clarify the extent thatdifferent victim fault of types affecting criminal liability, and at last sentencing guidanceshould make more specific standard on victim fault affecting the measurement of penaltyaccording to the victim fault in every crime case.