Research On Criminal Imputation In Victim Self-involvement In Risk

The theory of victimology,which originated in the 1930 s,promoted Victims' rights movement in countries and strengthened the legislation of victims' participation in criminal procedure.Meanwhile,the research of "criminal-victim relationship" also promoted the thinking that the behavior of victim should be influential in deciding the criminal responsibility of the perpetrator.victim's fault can mitigate or even eliminate the criminal liability of the perpetrator became an recognized criminal rule,after that,German criminal law scholars wanted to play the role of victim in deciding perpetrator's criminal lawless,they tried to build some theories that could explain this conclusion and developed new theories like victim self-liability and the victimological approach.Meanwhile,the victim knows the risk but still implements risk behavior with perpetrator's abetting or help,agrees and requires the perpetrator to implement or with the perpetrator to implement risk behavior,thus insulting the emergence of results of damage to the common good.In such circumstances,whether the perpetrator should be imputed,is another factual type that should be considered after victim's consent,which could change the nature of the perpetrator's criminal liability in theory.Of course,academic's concern for this proposition,is also a response to the judicial practice in dealing with this type of case which has different referee conclusions.From the perspective of the development of the doctrine,this concern for the criminal law imputation in which can be called the consensual-type victim's self-involvement risk,began and expanded in German.While the United States,who focused on the victim's behavior,especially the victim's fault,could only affect the dimension of criminal responsibility,paid little attention to this proposition.China's concern for this question was later than German,there is little literature to study this independent factual type,the theory is rather single and not fully reveal all German's theory around the issue.what's more,judicial practice has not yet formed a problem consciousness.Whether the consensual-type victim's self-involvement in risk could and how to influence the perpetrator's illegality,needs to be taken seriously in our country.The essence of consensual-type victim's self-involvement in risk is that,victim agrees and accepts perpetrator's abetting,help or his risk behavior.It's different from the types of victim's self-involvement in risk,which the perpetrator implements risk behavior without the consent of the victim: First is the type of victim's self-involvement in risk caused by victim's "intentional" or "negligence",which are often discussed in victimology under the victim liability area.The former circumstance is,the victim knows a particular place exists high-risk of rape,but still walks through at middle night,hence be raped;the latter is,the victim should have foreseen or expected to go out without locking the door would be stolen,but still forgets to lock the door and thus be stolen.Another circumstance is that,victim's provocation makes the perpetrator implement risk behavior,such as self-defense.The difference between this type and the above type is that,whether the perpetrator's risk behavior occurs or not,to the victim,is only a possibility,it is full of uncertainty.The second is,the perpetrator creates unacceptable risk without victim's prior consent or approval,the victim knows the risk,but still traps or maintains in the risk.The third is,in order to avoid the risk created by the perpetrator,the victim traps in another risk.The last is the case that the perpetrator frauds victim who is suspicious of this,but he still pays property to the perpetrator.This article will mainly deal with the consensual-type victim's self-involvement in risk,meanwhile,the other types that has been introduced in the above will also be simply discussed.Therefore,the whole object of this article is victim's self-involvement in risk.It is not equivalent to the victim's fault,the former is a purely factual concept while the latter is a concept full of value(illegal or unethical).Because criminal theory still can not define clearly the connotation and denotation of victim's fault,which mainly affects the criminal responsibility of the perpetrator rather than the illegality,it is necessary to regard victim's self-involvement in risk as an independent factual type which doesn't belong to victim's fault,hence to consider its influence on the perpetrator's illegality.The consensual-type victim's self-involvement in risk is also different from victim's consent that he agrees or accepts the actor to injure the object and self-harming.In former circumstance,the victim does not want to pursue the emergence of the damage result of common good and whether this risk will be realistic is quite uncertain.The similarity between this and harming oneself makes the theory of the crime of the domination,which can be used to distinct assistant self-harming and victim's consent,is applied to distinct the consensual-type victim's self-involvement in risk.Self-endangering refers to the victim knows risk,but still implements a certain risk behavior or traps in a risk situation with perpetrator's abetting or help,the victim himself is the controller of the risk.Endangering someone else is that,the victim knows other's behavior is risky,but still requires or agrees him to implement the risk behavior.Around this question,the main theoretical view is the principle of victim's self-liability.Professor Roxin created the rational crime theory,by departing from the "Liszt gulf”,following the new Kant school of normative theory and the New Hegelian school of thought and breaking the distinction between deserving punishment and needing punishment.Based on this system,the victimological approach became another theory in resolving this problem,it advocates that when judge the wrongdoing of the perpetrator,thus his deserving punishment and needing punishment,We should take into account victim's deserving protection and needing protection,it argues that when the victim has possibility of self-protection,they won't obtain the protection of the criminal law.Hence,the rational crime theory which can implement the teleological criminal policy interpretation,provides a development space for the principle of the victim's self-responsibility and the creation and the victim logical approach.In addition,the theory of victim's consent,which is applied in domain of intentional,is directly followed or slightly modified,becomes an important theory that explains victim's self-involvement in risk excludes the wrongdong.The traditional theories like Redress prohibition,complicity theory and the relativization of duty of care,”new wine in old bottle”,will explain the imputation of this type.Because its openness and inclusiveness,the doctrine of criminal law treats the consensual-type victim's self-involvement in risk as a new factual type.Filled with value,criminal theory will not be stand still once formed,on the contrary,to maintain its vitality,the old judgments will be replaced by the new ones with the change of the criminal law,the development of society,The research results of the victimology has prompted the criminal theory to concern itself with the issue of criminal imputation and the change of new value judgment in the consensual-type victim's self-involvement in risk and other types.From this point of view,these theories which solve the imputation of the consensual-type victim's self-involvement in risk at least don't have methodological error.The consensual-type victim's self-involvement in risk can exclude perpetrator's unlawfulness,one of the theories is the relativization of duty of care,The theory argues that in the sense of justice,the objective duty of care can be dissipated in specific circumstances of the case,which depends on what kind of attention should ordinary people pay in specific situations.According to this theory,the victim knows the risk and is still at risk,the perpetrator will not have no specific obligation to protect the victim.However,this theory is different from the theory of individual of duty of care,although it is reasonable to reveal the specific content of the objective obligation and the extent of the duty of care according to the specific circumstance,it is unable to explain why it could exclude the perpetrator's duty.The principle of the assumption of risk in tort law can't be applied to criminal Law,which is different from tort law in purpose and nature.What's more,whether this principle in tort law actually excludes the perpetrator's duty is still controversial.And this principle in tort Law of the United States and German has been replaced by the principle of relative negligence,so it's not appropriate to apply it to criminal law.Victim's self-involvement in risk,in the view of criminal law,it can only be regarded as a conclusive argument,because criminal law doesn't have the purpose why assumption of risk could exist in tort law.The theory of redress prohibition,its proposition is that the pre-negligent perpetrator(who performed the act that conforms the constitutive requirements)can not take responsibility for the result of the damage caused by the act of free and intentional act of the latter.Loose to see,in the case of self-endangering,the perpetrator doesn't implement perpetrating act,based on this,the imputation of the perpetrator may be ruled out.As for the endangering someone else,this theory can't explain whether the responsibility should be ruled out or not.But from the point of form,the theory itself is lack of qualification as a solution to the imputation of the consensual-type victim's self-involvement in risk,theoretically,it's regarded as the basis for resolving this question,due to the advocate didn't distinguish this factual type and the type that perpetrator implements the forbidden risk without the consent of the victim in advance,the victim knows the risks and still traps or maintains in the risk,hence results in the theory which was originally intended to be used to solve the latter type,was used dislocationly.What's more,the basis of the theory itself is not enough,the proposition that the latter is free and intentional can only be used to solve the attribution of his,but can't explain why we should not blame the former.And the theory based on the controllability or dominance has not become more substantial,the proposition that this theory is based on the trust principle,must accept the criticism that this principle is a useless rule which makes the fruit for the cause.And if the principle of self-responsibility is the substantive basis,then the theory of redress prohibition is only a conclusion,it does not give any reason or basis,hence becomes a void worthless "mark".Based on that the principal offender in intentional harming oneself doesn't conform the constitutive requirements,deliberate assistant harming oneself also has no illegality under the subordination of complicity,through the sin lifting method to deduce the less social harm of the self-endangering is not guilty,or directly through the subordination of complicity to deduce the victim with the identity of the principal is innocent in the case of self-endangering,hence the perpetrator with the identity of accomplice is also innocent.This discussion exists formal flaws and content defects.From the perspective of normative evaluation,the victim is not the object of criminal law's evaluation and regulation.The principal and accessory are label added by the common action subjects who caused damage to the legal interests of "others”,self-harm or self endangering,it is difficult to apply these conception,and the realm of negligence is different from intentional crime that can impute just according the bad behavior under the subjective will of the perpetrator or the pure objective action that directly causes damage to legal interests.More importantly,the premise of this model is that the victim's self-harm or self-endangering is not crime,but it doesn't clearly reveal its substantive basis.Hence,the discussion that under the sin lifting method,the degree of severity of the social harm of the self-endangering and self-harming,the intentional wrongfulness and the negligence of wrongdoing,does not make any sense to the problem.Formal argument of the accessory not only has its own flaws,but also can't explain the substantive basis.This determines the model of the accomplice is not the effective program to solve the imputation in the consensual-type victim's self-involvement in risk.The victimological approach recognizes that individual with the ability of self-determination has the obligation of self-protection before the state,it only has auxiliary and non-priority in the protection of individual's common good.According to this theory,with the concept of the possibility of self-protection,imputation is negated.The principle of victim self-liability,based on the "autonomy decision" of philosopher or the "scope of responsibility" in sociological sense,also advocates that when the victim realizes that his or her action is at a disadvantageous risk but still traps in it,is action that doesn't have self-determination to fulfill his obligation of self-protection,the subject violates the inherent freedom of the main provisions of the subject and doesn't use the freedom,hence the perpetrator is not liable for damage to common good.But based on the victim's self-protection,the two theories are all difficult to set upon the one hand,the obligation of self-protection should only have the moral orientation,which has appeared in the Kant's moral philosophy theory,but in the legal dimension,it is a false proposition.Because the law imposes obligations on individual,it is always directed against others,meanwhile,it also violates the normative law that the obligation and the corresponding right can not be gathered in one person.Administrative law punish the actor,it also doesn't mandate person to perform obligation of self-protection,the model of hard legal paternalism legislative,imposes the behavior patterns that it considers are good and happy to the individual,it wants them live in accordance with its per-suppositional life practice,this is questionable and should be criticized.Under the trend of individual liberalism,the traces of hard legal paternalism should be gradually eliminated.The existing law will not legitimate if it restricts the public only for their own interests.And when the individual implements the act of self-endangering could endanger the rights of others or even the general public,the law prohibits this act still will not be regarded that it has imposed the obligation of self-protection to person who endangers himself.Victims of civil law should prevent damage,is also not the result of the duty of self-protection,because it is a consensus that in interpersonal communication,people should take measures to avoid or reduce the loss when necessary,to reduce the cost of communication.At this point,the injured party reduces the loss is an obligation to the debtor.Therefore,the duty of self-protection of the victim of criminal law not only does not have philosophical basis,but also can't obtain support from other legal norms.More importantly,it is a dangerous practice to recognize that in criminal law.The monopoly of the penalty power to state not only denies the priority of the individual's duty of self-protection,but also inevitably leads to the inequality in application of the criminal law,because the applicability of criminal law depends on the uncertain fact that the victim's possibility of self-protection,and this will also inevitably cause the damage to the stability of the criminal law.Under this mechanism,the preventive function of criminal law to person who infringes the legal interests of others will also abate,the subject of common good becomes the subject to protect common good,thus the law that originally restricts the freedom of the person becomes specification to restrict the freedom of the victim,this makes the guidance of the criminal law become deviation.Therefore,victimological approach and the principle of self-liability,which take the duty of self-protection as the basic standpoint,can't realize the effective explanation of imputation in this case.Whether the "risk of harm" is considered to be the "outcome object" of consent or the recognition of "risky behavior” is regarded as a sufficient and effective condition of consent of the victim,this proposition that puts the consensual-type victim's self-involvement in risk in the victim's consent theory is an analysis based on the standpoint of the victim's right to self-determination which is contrary to the point of the obligation of victim self-protection.In German literature,some advocates of the principle of victim's self-liability also base on the similar position--the realization of the victim's freedom,to construct the theoretical system that the consensual-type victim's self-involvement risk can exclude the wrongdoing of the perpetrator,Whether Professor Frisch,from a purely functional definition of such a principle within in the criminal system and the freedom of the perpetrator and victim,or Professor Rainer Zaczyk,from the pure legal philosophy level,asserts that in the consensual-type victim's self-involvement in risk,the victim realizes freedom so the perpetrator doesn't infringe his freedom,they all reflect this position.The analysis based on the realization of the freedom of the victim,has a deep foundation of legal philosophy and the support of the Constitution which respects and protects the human rights,it obtains the reasonable justification.The purely harm to self is innocent in criminal law,only because that it is a way of self-actualization of the subject's self-determination,placing it under the right is to prohibit and exclude the improper intervention of the criminal law in father's position.The cause of purely endanger to self is innocent is also this,because the achievement of the main purpose of obtaining interest through self-endangering is also self-choice that the law must respect.With the participation of the perpetrator,the purpose of the victim's self-trapping risk is also to realize self-interest by using of risk behavior or exposure himself to a risk situation.This is the lowest agreement that different advocates demonstrate the wrongdoing of the perpetrator from the point of rights.The effective mechanism that connects the freedom of the victim with the wrongdoing of the perpetrator is,on the one hand,in the victim's self-involvement risk,he doesn't want the risk to be actualized,because of the existence of damage of the object objectively,the result also violates the subjective will,it does exist the infringement of common good.Under the motto of the law that the nature of the crime is the infringement of common good,the perpetrator commits a crime seems to be a natural conclusion.Merely,the common good is the condition of self-perfection,the value of its existence is to help to realize the freedom of the subject,victim's self-trapping in risk,as a way to achieve his freedom,the damage of the object is sometimes a possible cost.Such a cost should be borne by the victim rather than by the perpetrator,it's not only a recognition and respect for victim's autonomy,since when the victim has the capacity to trap in the risk to seek benefits by self-determination,he also has the capacity to undertake the harm,the victim takes the risk,is also the reflect of the principle of autonomy,since the fundamental connotation of autonomy is to make voluntary choices and assume liability for all the predictable outcomes that this option can take,namely,assumption of risk.On the other hand,From the perspective of the subjectivity of legal interests,in interpersonal society,the realization of individual's freedom requires participation of others,there is an equal cooperative relationship between the victim and the perpetrator due to the perpetrator's help the victim,to achieve his freedom,in this case,it is not unequal infringement relationship.the victim voluntarily traps in risk to obtain freedom,the perpetrator should not be considered against the common good of the victim.In this circumstance,imputing the perpetrator will violate the freedom of his,and this effect of this normative evaluation also restricts the freedom of others who wants to implement specific risk behavior through interaction with others to seek specific benefits.Thus,criminal law should not avoid the harm of the object caused by the realization of the victim's freedom through limiting the freedom of the perpetrator!The disadvantage of Professor Zaczyk's view lies in the fact that,the normative conclusion that the perpetrator is innocent based on the realization of the victim's freedom in the philosophy of law is ineffective,because it doesn't realize the transformation of common good in terms of normative criminal law,as well as the deep discuss the connection between the victim doesn't intend to harm the object with the perpetrator doesn't infringe his freedom in the level of common good.In the "quasi-consent” theory,it is extremely far-fetched approach to take the” risk of injury" to fill the space the” results object”,after all,"risk" is non-realistic certainty "results”;the deficiency of the argument that only " behavior consent” could exclude the wrongdoing of the perpetrator is that,it regards the object in risk directly as the object in damage,but from the perspective of the will of the victim,the damage in the former circumstance deviates from the will of him and there is infringement of the common good,while the latter is the implementation of victim's will.The difference between the subject's will decides it doesn't exist equal sign between the two,and if want the two to get the same normative evaluation,the theory of” behavior consent” obviously doesn't go farther.Professor Neumann's discussion on the principle of self-liability which based on "priority of legal interests”,it is worthy in terms of disclosure of subjective content of common good,however,if the substantive connotation of the priority of common good includes self-determination power of the subject,then his theory has the same flaws as " behavior consent”.In addition,the consensual-type victim's self-involvement in risk,whether the perpetrator has legal obligation to help the victim under the emergency state of being victimized after the occurrence of the risk behavior has been caught,the basic viewpoint of this article is that,the assumption of risk by the victim makes the behavior by the perpetrator become tolerated risk from the beginning,it does not have the negligence to impose on the obligation,it is the case that should not be given rescue obligation.Self-endangering and endangering someone else,according to assumption of risk,they could all exclude the wrongdoing of the perpetrator,hence the purpose under the analogy of the distinction between assistant suicide and killing with victim's consent in German criminal law here is negative.But this distinction is still necessary,because the specific conditions of the two in the exclusion of the wrongdoing of the perpetrator may be different,it can be seen from the situation that the assistant self-harm and victim's consent have the same basis but still not be distinguished,instead,they should meet different elements in order to prevent the illegality of the perpetrator.The general conditions of this circumstance in exclusion of the wrongdoing are that,the object that risk may danger should only be limited to the personal common good which can be dominated by the victim,if endangering someone else possibly danger the collective common good,it can't exclude the illegality,the cost of the realization of freedom,can not let third person bear.The condition that the victim has the capacity to undertake risk is also indispensable,from the standpoint of protecting the vital interests of minors,it is appropriate to regard the age of 18 as the standard that the perpetrator needn't take criminal responsibility because of the damage of the object caused by his participation,assistance or consent of the victim.In addition,the death risk is the highest price the victim should bear,the normative and the practice that agreed to suicide is void can't be applied to consensual-type victim's self-involvement in risk.In terms of individual elements,voluntary of the victim is the lowest and the most core condition,it requires the victim to be conscious of risk and to be exposed to risk,there is no misunderstanding about the risk.In non-consensual type victim's self-involvement in risk,except victim's provocation and self-defense,some typical cases should be discussed.The first case is that the perpetrator had previously committed an unacceptable risky activity,victim was aware of the risk or was still at risk when he could have avoided it with the help of a third person or himself,but still be at risk.Obviously,the act was not related to the realization of the victim's freedom,the illegality of the act couldn't be excluded.When the victim trapped in risk was to eliminate the risk,and therefore had the similar value and meaning as necessity,whether trapping in risk was based on the obligation of the law,the perpetrator should still be responsible for the result of damage of common good,the unlawful result can not be excluded,and this shouldn't be restricted by the principle of “interests-risk balance”.When this type didn't have the value like necessity,whether the perpetrator was responsible for the result,we should analysis this from traditional responsibility theory,from the point of the perpetrator,If the perpetrator could have foreseen that the victim would remain at risk before he makes risky activity,or he make a risk that surely could harm the victim,the victim couldn't avoid the risk and remains at risk positively,the perpetrator should be responsible for the harm.In addition to the situation and in the case that the victim trapps in risk in order not to eliminate risk,the perpetrator shouldn't be responsible for the harm.The victim should be responsible is just the conclusion that the perpetrator is not be responsible.Whether negates the relationship between the behavior of the perpetrator and the damage result of common good when victim is "suspicion” of the " fraud " but still pays the property,the victimological approach gives a negative answer.This article argues that,the specific of the victimization of criminal policy in criminal law,shouldn't be universal,and becomes the general defense that the perpetrator doesn't constitute a crime or is not responsible for the results.Hence the perpetrator should still be reputation though the victim is " suspicion” of "fraud”.When victim's " intentional " or " negligent " behavior caused risk behavior,this paper argues that,as the victim doesn't infringe the perpetrator's freedom,his act is still in the extent of the real of liberty,this can't effect the wrongdoing of the perpetrator,thus at least in the assessment of the wrongdoing of the perpetrator,we shouldn't consider the factor of victim.The causal relationship between the perpetrator's fraud and the victim's cognition error is only a kind of state of the crime of fraud.In addition,it is also the crime of fraud when the act of a third person who doesn't have complicity relationship with the perpetrator or the victim himself causes the mistake,the perpetrator has the obligation to inform but still implement act that maintains this mistake.On the contrary,when the perpetrator does not have the obligation to correct the victim's misconception,the perpetrator should not be criminalized.Bergelson argues that” comparative liability" of victim should be regarded as a general rule of the criminal law,thus enlarging the scope of victim's role on criminal responsibility.But the idea exists inherent flaws which is difficult to reconcile,this greatly reduces its theoretical value.For example,the basis is not sufficient for criminal law to apply the principle of comparative liability in tort law,the principle of conditionality rights can't provide the same rationale for different types of victim's behavior to the criminal responsibility of the perpetrator,the applicable standard is also not universal.It is more difficult to expand the type of victim behavior that can work as justifications.There is no basis to divide the victim's fault into justification and excuse.By comparing this theory and the victim's self-liability principle and victim logical approach,we can find that trying to develop a unified theory to solve different types of victims' behavior,which has effect on criminal responsibility and wrongdoing,is a common goal for different advocates.It is not only unrealistic,but also impossible.