On The Behavior In Accordance With The Presumed Consent Of The Obligee

In modern society, the principal specification applied to determine the behavior patterns among people is the legal specification, which apparently belongs to formal specification relative to other specifications that exist in society, and has become one of the most important and most effective form of social control. However, in regard to the details of human life, besides the existence of human society as a whole, there may be in some occasions specific groups called "small groups", where the interactions among the internal members are often not subject to the mandatory effect of formal specification. The cause of this situation is that a relationship of trust among the internal members of this kind of group has been established in the interactive activities on the handling of certain transactions, which makes any formal legal protection or sanctions redundant. Therefore, under the premise of without affecting the whole society and other members outside the group, according to the informal specification established among members of the "small groups" in the interactive activities on the handling of certain transactions, some adjustments and amendments shall be made to the formal specification so as to ensure the individualization and rationality of the code of people’s behavior under certain conditions.In the field of research of the criminal law, the behavior in accordance with the presumed consent of the obligee falls into this type of case, because it is the qualitative problem to be solved under the condition that members of the "small groups" based on specific relationship don’t have access to the real wills of the obligee, and investigate the specific relationship among them and the objective existence of the situation, in order to maximize the closeness to the real wills of the obligee to deal with the benefit of the obligee. In this process, the great significance of the above-mentioned informal specification lies in that it is the specification which has been consented by both the conductor and the obligee and shall be followed when the conductor deals with the benefit of the obligee. When the conductor of the "small groups" follows the informal specification(on the premise of not shaking the effectiveness of formal specification for other members of the society and the society as a whole), even if their behavior seems less strictly conform to the requirement of formal specification, the criminal law shall give up comment based on the spirit of "leniency". But the conductor shall not exceed the limits of formal specification when conducting the behavior in accordance with the presumed consent of the obligee, and at the same time shall consider "the social general idea".The thesis consists of five chapters, with a total of more than 170,000 words, apart from the introduction section.The first chapter discusses the concept of the behavior in accordance with the presumed consent of the obligee and its specific classifications. The behavior in accordance with the presumed consent of the obligee shall be expressed as the behavior that the conductor who has a certain relationship with the obligee within the matters involved can not be clearly aware of the real wills of the obligee, by investigating the specific relationship with the obligee, especially the interactive activities and the objective existence of the situation, guided by the behavior tendency of the obligee, and disposes of the matters which shall be dealt with by the obligee. The significance of the behavior in criminal law mainly depends on the abovementioned investigation process and the behavior itself, and the attitude made clear later by the obligee only has the reference value. And this chapter also analyzes the differences and connections between such concepts as the "victim" and the "obligee", "consent" and "promise", and stresses that the so-called "presumption" can only happen within a "small group" between the conductor and the obligee with a certain relationship. Specifically, this kind of behavior has the following different categories. According to the benefit object, it can be divided into "presumption for the benefit of the obligee" and "presumption for the benefit of others". In the "presumption for the benefit of the obligee", based on the presumed items, it can be further divided into "presumption related to the articles", "presumption related to the personality " and "presumption of the current decision".The second chapter introduces the development status of the behavior in accordance with the presumed consent of the obligee in foreign criminal law theory. In the theory of criminal law in the countries of Anglo American law system, it exists as a type of "legal defense", while in the theory of criminal law in the countries of civil law system, it is usually discussed in "justifications for exclusion of illegality". The basis of justification of the behavior in accordance with the presumed consent of the obligee mainly includes "management of transaction ", "emergency avoiding danger", "extension of the consent of the obligee"( "measurement of legal interest"), "social equivalence theory", "allowed risk theory", "independent justifications for exclusion of illegality"( "combination theory") and other theories, among which, "management of transaction " relies on the direct provision of criminal law, and the reference of "emergency avoiding danger" and "extension of the consent of the obligee" is the opposition to the image of such kind of behavior. And "combination theory" takes consideration of a combination of the two kinds of image and considers that the theory image of the justification includes the behavior of emergency avoiding danger and the behavior of obtaining "presumed consent of the obligee", among which the latter occupies the dominant position. What can be really considered as the opposition based on the establishment of the theories are "measurement of legal interest"(which can be regarded as "extension of the consent of the obligee"), "social equivalence theory", and "allowed risk theory", because these theories are the opposite theories established on the different understanding of "illegality". Among them, "measurement of legal interest" is another term(roughly) for "extension of the consent of the obligee", because the practice of "post judgment" on the nature of behavior does not accord with the characteristics of the criminal law as a social science, while "social equivalence theory" is too broad, and the "allowed risk theory" is aimed primarily at the case of negligent crime, and the foundation of the behavioral baseline is to coordinate the benefit and the hazard which may be brought about by a certain dangerous behavior.The third chapter discloses the reason why the presumed consent of the obligee actually belongs to "justifications for exclusion of constitutive requirements". Because the relationship between judgment of conformity of constitutive requirements and judgment of illegality is not the relationship between judgment of form and judgment of nature, but the relationship between the intellectual thinking and dialectical reasoning, in other words, the judgment of conformity of constitutive requirements shall also consider the substantial infringement of behavior on legal interest, while the judgment of illegality is to solve the problem of the conflict of legal interest. In the behavior in accordance with the presumed consent of the obligee, because of the embodiment of respect for the consistent attitude of the obligee, therefore there shall not be considered to be "conflict of legal interest" and thus shall deny the substantial infringement of legal interest. Therefore, it does not belong to "justifications for exclusion of illegality". Meanwhile, the purpose of criminal law is to protect legal interest, so the concept of "legal interest" has become the core of constitutive requirements, and the denial of the substantial infringement of behavior on legal interest means the denial of conformity of constitutive requirements. There exist many controversies in the theory of criminal law on the concept of "legal interest", but the so-called "legal interest" shall be understood as individual needs of "self-realization and free development" in a society governed by law. In order to protect legal interest, social members are required to comply with certain specifications. Also, legal interest shall be a concept of "pre actually prescribed criminal law", and the criminal law only comes on the stage under the premise that other means are insufficient to protect legal interest. In terms of the occasions where the behavior in accordance with the presumed consent of the obligee is able to be established, protection of legal interest of the obligee relies more on their own reasonable expression of wills in the process of constructing the "informal specification" that all members of the "small group" shall comply with, instead of resorting to the intervention of criminal law.The fourth chapter analyzes the development status of the behavior in accordance with the presumed consent of the obligee in the criminal law theory in our country. There exist many controversies among China’s criminal law scholars over the constitution of crime and the position of "justifications for exclusion of crime" in it. From the point of the research content of the elements of crime constitution, all the justifications for exclusion of crime can be placed in the study of "criminal object" which is specialized in the judgment of nature. On the judgment method, we shall emphasize the role of the concept of "social harmfulness" in negating the conformity of the behavior with the constitution of crime. To some extent, in order to make the reason for all kinds of "justifications for exclusion of crime" to exclude "social harmfulness" become more clear, "justifications for exclusion of crime" can be divided into such justifications as followed: for being beneficial to the society, because the objective harmfulness is obviously minor, due to lack of personal dangerousness and because the relationship between the parties involved do not belong to "social relationship" and so on, and the behavior in accordance with the presumed consent of the obligee shall belong to the last category. At the same time, this "justification for exclusion of crime" as a "justification for exclusion of crime surpassing laws and regulations" is not in violation of the principle of legally prescribed punishment. These justifications are able to exist by "surpassing laws and regulations" because in reality there is no "one-size-fits-all legislator" and thus will be able to develop "justifications for exclusion of crime" to include any kind of occasion for exclusion of crime.The fifth chapter sums up the elements for the establishment of the behavior in accordance with the presumed consent of the obligee with the "informal specification" as the core. In terms of the behavior of the disposal of the matter without authorization issued by others, in order to establish the behavior in accordance with the presumed consent of the obligee, on the one hand, shall not go beyond the range of the effectiveness of the "informal specification" and therefore become the regulating object of formal specification, requires that the matter involved in the behavior shall be able to be freely disposed of by the obligee. And at the same time, the obligee shall have the ability to consent the disposal of these matters by others, and the "presumed" will of the obligee has voluntariness. On the other hand, "informal specification" shall be constructed according to the specific relationship between the conductor and the obligee, the nature of the matter itself involved in the behavior, the usual behavior of the obligee and whether the real will exists or not, using the concept of "social general idea" as the criterion, and achieve "indirect presence" and "direct presence" of this criterion in the criminal justice activities.